TO v R

Court of Criminal Appeal (NSW)|2016-09-21|Before: Price J, Button J, Fagan J

n [1994] HCA 63; 181 CLR 487 MLP v R [2014] NSWCCA 183 R v AJP [2004] NSWCCA 434 R v Baartman [2000] NSWCCA 298 R v Baden-Clay [2016] HCA 35 R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60 R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 R v Hunt [2003] NSWCCA 301 R v Johnston (1998) 45 NSWLR 362 R v Muldrock (2011) 244 CLR 120; [2011] HCA 39 R v Stewart (2001) 52 NSWLR 301 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 RJA v R [2014] NWCCA 89 RR v R [2011] NSWCCA 235 Sio v R [2015] NSWCCA 42 SKA v The Queen [2011] HCA 13; 243 CLR 400 Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 Wong v The Queen (2007) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: TO (Appellant) Regina (Respondent) Representation: Counsel: D Barrow (Appellant) E Balodis (Respondent)

Solicitors: Giddy and Crittenden (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/00117537 Publication restriction: Non publication of any information or material that may lead to the identification of the complainant or witness: Children (Criminal Proceedings) Act 1987 (NSW), s 15A; Crimes Act 1900 (NSW), s 578A. Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 18 August 2015 Before: Wells SC DCJ File Number(s): 2014/00117537

Judgment

PRICE J: On 15 June 2015, after a trial by jury before Wells SC DCJ ("the judge"), TO ("the appellant") was found guilty of three offences, namely: one count of aggravated sexual intercourse with a person under the age of ten, the circumstance of aggravation being that the child was under the appellant's authority, contrary to s 66A(2) of the Crimes Act 1900 (NSW) ("Crimes Act"); one count of attempting to have sexual intercourse with a child under the age of ten contrary to s 66B of the Crimes Act; and one count of assaulting a child under the age of ten with intent to have sexual intercourse contrary to s 66B of the Crimes Act.
The Crown case was that the victim of all of the offences was ZK ("the complainant"), the 9 year old daughter of the appellant's former partner. The complainant, her mother, the appellant and two of his three sons lived together in a house in Wilsons Creek.
It was the Crown case that between 19 June 2012 and 21 June 2012, whilst the complainant was in the shower, the appellant inserted his penis into her anus (count 1) and attempted to put his penis into the complainant's mouth (count 2). Later on the same day, in the appellant's bedroom, the appellant pulled the complainant's pants down and tried to have vaginal intercourse with her (count 3).
The appellant did not give evidence during the trial, but a recording of the interview when he attended Ballina Police Station on 17 April 2014 was played to the jury. During the interview, the appellant denied all allegations that he had sexually assaulted the complainant.
On 18 August 2015, the appellant was sentenced to 16 years imprisonment with a non-parole period of 12 years for count 1. For counts 2 and 3, concurrent fixed terms of 8 years imprisonment were imposed. The sentence commenced on 15 June 2015 and will expire on 14 June 2031. The appellant is eligible for release to parole on 14 June 2027.
The maximum penalty for an offence contrary to s 66A(2) of the Crimes Act is imprisonment for life with a standard non-parole period of 15 years imprisonment. As to an offence contrary to s 66B of the Crimes Act, the maximum penalty is imprisonment for 25 years. There is no standard non-parole period.
The appellant appeals against his conviction and sentence.

The grounds of appeal

The appellant appeals against his convictions on the following grounds: "Ground 1: Her Honour's refusal to discharge the jury as a consequence of aspects of the Crown Prosecutor's address to the jury occasioned a miscarriage of justice. Ground 2: A miscarriage of justice was occasioned by trial counsel's failure to seek a direction pursuant to s165B of the Evidence Act 1995 regarding the forensic disadvantage suffered by the appellant by reason of the delay in complaint. Ground 3: The verdicts are unreasonable and cannot be supported by the evidence."
The appellant appeals against his sentence on the following grounds: "Ground 4: Her Honour erred in the manner in which she applied Part 4, Division 1A of the Crimes (Sentencing Procedure) Act when sentencing the appellant Ground 5: The sentences imposed upon the appellant are manifestly excessive."

The trial

The trial commenced on 9 June 2015 and the jury retired to consider its verdict on 12 June 2015. As there is an unreasonable verdict ground of appeal, it is necessary to refer to the evidence in the trial at some length.
On the second day of the trial, the following agreed facts were read to the jury after being marked as Exhibit 1: "On 12 July 2014 at Tweed Heads Hospital [ZK] (the complainant) underwent an anal examination conducted by Consultant Paediatrician Doctor Gregory Carmen. The examination findings neither confirms nor denies the alleged anal sexual assault the subject of Count 1 on the indictment. [The appellant] and [MS] signed a twelve month lease for the property at [XXX] Road on 15 November 2010. A further lease on the same property, for a period of three months, was signed by [the appellant] and [MS]. The period covered was from 4 April 2012 until 4 July 2012. In 2012 [the complainant] and [OJ] were enrolled at Durrumbul Public School. [The complainant] was in grade 4 and [OJ] was in grade 3. School records show that [the complainant] was marked absent and sick for the period 19-21 June 2012. [OJ] was marked absent and sick for 19 and 20 June 2012. The period 19-21 June occurred during Term 2 of the school year."
On the third day of the trial, the following agreed facts were read to the jury after being marked as Exhibit 3: "The Durrumbul State Primary School athletics carnival was scheduled to take place on Friday 15 June 2012. Due to wet weather it was cancelled. It was rescheduled to take place on Friday 22 June 2012. [ZK] (the complainant) was marked absent from school on 10 May 2012. [OJ] had no absences from school in May 2012. On 23 December 2013 [MS] spoke to Detective Sheehan about certain things she said that her daughter [the complainant] had told her concerning [the appellant]. Detective Sheehan recorded the following information: 'When she [the complainant] was showering, the POI [the accused] came into the bathroom, undressed himself and got into the shower with her. He continually tried to have the [complainant] sit down on his lap and continually tried to pull her down onto his lap (no further detail disclosed at this stage)'. Detective Sheehan then recorded: 'During this time the POI digitally penetrated the anus of the victim his [sic] one of his fingers'. The shower cubicle at [XXX] Road has been measured. It has a width of 97cm and a length of 96cm."
The complainant was interviewed by Senior Constable Hilda Craigie on 15 January 2014 ("the first interview") and on 10 April 2014 ("the second interview"). Both interviews were played to the Court.
During the first interview, the complainant described the events that became counts 1 and 3. It was not until the second interview that the events that became count 2 were discussed.
The following factual summary has been extracted from summaries of the trial prepared by both the Crown and appellant, and the trial transcript.

A summary of the first interview

The complainant said there was a day when she was 9 years old, turning 10, when she was at home with chickenpox and the appellant "tried to like have sex" with her. She was asked if she could explain what she meant by tried to have "sex" with her. The complainant said there were "little bits at first" when her mother was not around, but what she meant was, "he tried to like put his penis inside me". That happened twice on the same day; once when she was in the shower and the other time when she was in the bedroom.
The complainant first described an earlier occasion when, shortly after having a shower, she went to her bedroom to get changed into her pyjamas. Just after she took her towel off, the appellant walked into her bedroom and said, "Woops sorry I didn't know you were there". When she left the bathroom, the complainant walked past the appellant while he was sitting on the edge of the couch. The complainant asked what he was doing, and the appellant said he was just watching TV, but she noticed that the TV was not on. She later felt that he was sitting there just waiting for her to leave the shower and go into her room. The complainant had difficulty working out if that incident occurred in September or October 2010, or in 2011. She was "pretty sure" it was April or May 2010 because she thought she was still 9 years old in 2010.
The complainant described the first time the appellant tried to "have sex" with her by putting his penis inside her: "A It, it was on a Tuesday 'cause it was the day that the talent shows auditions, at talent show auditions were for and the day before the district cross, district athletics carnival. And I got into that so I was really excited and then one of [the appellant's] boys had the chicken pox and then I woke up and I was really itchy. And then he was still up and then he said, and I had a little spot here and on my stomach and he said, It's the chicken pox, so I had the day off school and I just came out in lots of spots. And I was having a shower before I was gunna put some cream on the spots and I was, I was having the shower, I was in the shower and he came into the shower and he started to take off his clothes and I didn't know what he was doing. And I said, Can I have a shower in peace, he's like, Nuh it's all right. I'm like, but I said, It's not really all right because I want to have a shower in peace, and because he, he hadn't seen me with no clothes on before. And besides the time that he walked in on me which happened twice but the first time I know it was accident because that's when I was sharing a bedroom with the two boys. They were coming in and [OA] had just had a shower, the younger one and he was coming to help him get, get dressed and that, I knew that was by accident. But then after that he, he got, took all his clothes off and he sat down on the floor in the shower and he said, Just sit on my knee, and he was holding his penis here (DEMONSTRATES) trying to get me to sit on, I said, No I'm not doing that. And I tried to get out of the shower but he didn't, he was just like, No it's all right, and I said, No it's not I don't really feel comfortable in the shower with you. And then he pushed me down onto him but, not lucky but, I'm glad it went up my, it went up my butt not up, up my vagina - - - Q89 O.K. A - - - and that hurt and I started to cry because it hurt. And I grabbed his penis and took it off and ran out of the shower, he's like, Ow what did you do that for, and I said, Isn't it pretty obvious…"
This account formed the basis of count 1.
The complainant said she ran out of the shower, got changed, ran outside and sat on the trampoline. The appellant kept coming up to her and asking what was wrong. She would run away and did not answer him. The appellant came and apologised. The complainant said, "he's really sick in the head, he was born sick in the head and my Mum knew that and she told me so…" She then played the PlayStation with the appellant's sons.
The complainant went on to describe the events that became count 3: "… and so I went with him into the, his bedroom. And he took me into the big walk in wardrobe and so I started to, and then he, he went off and, and left me sitting there so I ran back into the house and he said, Come on, and so I did. I'm not sure why I did, it was, it was a mistake of me going with him. And then he closed the door and he said, We don't, I don't want, I don't want the boys to see, and I'm like, What do you mean. And then he said, Just, just be quiet, and I said, No, and then I tried to get out but he wouldn't let me. And then he, and then he, he pulled my pants down and chucked me onto his clothes and then he pulled his pants down and, and tried to put it into me. And I kicked him, I kicked him there because I knew boy, it hurts for boys when he did that and I kicked him there and ran off into my room and I locked the door and I didn't come out for like a few hours. And, well I went out to get food and stuff and then my Mum came home from work and I just hang, hung around with my Mum for the rest of that day."
Later on in the interview, the complainant provided further details of what had occurred in the shower. Her mother left for work at about 8:00am. At about 9:00am she went to have a shower. The bathroom door and the shower door were closed. She was under the shower for about a minute when the appellant walked in. She saw him getting undressed out of the corner of her eye. He got in the shower with her. The complainant described her feelings at the time the appellant got into the shower with her: "I'm feeling like God what's he doing now and sort of like and I …. in my head I'm just like, like I'm sort of giving him a facial expression like what the hell are doing here". The appellant had never been in the shower with her before.
The appellant sat on the floor of the shower with his legs crossed. The complainant said: "He said, Just sit on my knee, and he was sort of holding it there, he was holding it like that, he's just like, Just, just sit here, and I said, No I'm not going to. And then I tried to get out of the shower and then he wouldn't let me". The appellant was holding "his penis" with his right hand. The complainant said: "Q147 O.K. And can you describe what his penis looked like? A I don't really feel comfortable telling that and it's…. ….question. Q148 O.K. Let, let's talk about that, how come you feel uncomfortable about that? A Because when I sort of look back to it I find it as a really disturbing image and it's sorta brings up emotions and makes me feel sad. Q149 O.K. It's really important that we do talk about that part because it gives us an understanding of what you saw at the time. And I'm really sorry that makes you very emotional and it's hard for you to say that but it's something that we really need to talk about. A Maybe before I tell you could I have a drink of water? Q150 You certainly can, absolutely."
The complainant went on to describe the appellant's penis as "hairy and stiff". She said looking back it was obvious because boys' penises go stiff when they were getting "horny".
The complainant refused to sit down. She said "No" and told him she was getting out of the shower: "A I tried, I pushed the door and pulled it back sharp and he said, No you're staying, and I said, I don't want to, and - - - Q163 And what happened after that? A He forced me to sit on his lap and, and I, and I did because he pulled, pulled me down to his lap but, and by that, not, like I said before not lucky but it went up my bum not, not up my vagina. Q164 O.K. 'Cause you did tell me and Chris before about something about his penis going up your bum and not your vagina --- A Mmm. Q165 --- how do you know it went up your bum and not your vagina? A Because I could feel it --- Q166 O.K. A --- and it hurt."
The complainant said she "grabbed his penis, ripped it off and ran out and he, and he said, Ow you grabbed it, I'm like, I know." She grabbed it because it was sort of "stuck". She demonstrated how he was sitting and how she "went behind, grabbed and pulled it off" and ran out of the shower.
The complainant ran unclothed to her bedroom. She did not care that she was wet, and she put some clothes on and ran outside to the trampoline. From the trampoline she saw that the appellant's two sons were in their bedroom playing the PlayStation. His two sons were aged about 4 and 8 years old and they were looking in the other direction. The complainant went to the house next door and sat on their verandah for a while but no one was home.
After about half an hour she was walking down a path that went to a creek when the appellant ran up to her. He said, "Look I'm sorry". She did not take any notice of what he was saying and ran to her room and locked her door. All of these events happened before lunchtime.
In providing further details of the events in the bedroom, the complainant said, "I have a little circle in the door and I looked through and no-one was there so I walked out and got myself some, something to eat." The appellant came and asked her to come into the closet in his bedroom. There was a shed in the backyard about 6 metres from the house that her mother and the appellant had turned into their bedroom. The appellant said, "Just come with me". The complainant told him she did not trust him anymore and the appellant said, "Look I'm sorry you know I get sick in the head sometimes and I don't know what I do." The complainant thought, "Fine", and if he was going to do anything like before she could just run out and get out of the situation.
The complainant went and sat on the bed. The appellant then walked out and she waited for about 5 minutes before she went and sat on the couch in the house. The appellant came up to her and said, "Come on I'm ready now". She said "Ready for what" and the appellant said, "Nothing I was just getting some things" - although she could not actually remember his answer. The complainant went with the appellant to the bedroom and the appellant pulled her pants down. He pushed her on the chest with both his hands and she landed on a pile of clothes in the corner of the cupboard. The complainant was wearing tracksuit pants, underwear and a shirt and he pulled off her pants and her underwear.
The appellant took off his pants and underwear and took his penis out and came towards her. She said: "And then he sort of knelt down and, and went like that (DEMONSTRATES) and I, then going through my head what the hell is he doing, just reflexes I kicked him there and he went back on the floor. And because it hurts for boys and, and I ran out and then I didn't talk to him for the rest of the day".
The appellant did not try to touch her, grab her or any part of her body. When she kicked him in the penis he just fell to the floor and said, "Ow that hurt", and she ran out. The complainant said he was trying to put his penis in her vagina. She knew that because, "He was looking there and he was going very quickly and he was going into the direction of it." The complainant was lying back on the floor in shock because she had hit her head on the wall. She ran out and ran to her room.
Prior to these events the appellant had touched her in a way that had made her feel uncomfortable. On one occasion she was in the kitchen making breakfast and the appellant ran his hand down her back and when he got to her butt he "sort of squeezed it." It was in the same year as the other events she had described. It was when she and her mother were living at their house in Mullumbimby and the appellant used to come and stay. On that day her mother had gone to work and the appellant was babysitting her. No one else was home at the time. When the appellant put his hand on her butt it made her feel uncomfortable. He did not say anything; he just walked away.
On another occasion after these events, the complainant was lying on the couch watching a movie. The appellant came and lay next to her and put his hand on her hip. She stood up and walked into her room.
I interpolate here to mention that these previous acts were admitted as context evidence. During the judge's directions to the jury, her Honour said (SU 30): "It is evidence admitted solely for the purpose of putting those particular acts, that are subject of the counts, into a realistic and intelligible context, by that I mean the history of the conduct by the accused towards the complainant."

A summary of the second interview

The complainant said she went back to speak to Detective Craigie because she did not say everything that happened in the first interview. She was asked: "Q67 - - - there were some things that you told me that happened with [the appellant] in the shower at [XXX] Place. Is there anything that happened in that shower that you want to tell me about today that you didn't tell me in the first interview? A No. Q68 No? A I've told everything about the shower."
The complainant was then asked: "Q69 O.K. And remember the one that you told me about that happened in his bedroom - - - A Mmm. Q70 … - - - at [XXX] at Wilsons Creek, everything that you told me that happened in the bedroom there is there anything else that you want to tell me about that? A No because I've already told everything about that."
When asked by Detective Craigie what she was there to talk about, the complainant responded: "A Well when I was walking out of the house because I could hear my mum's car coming up the driveway he said to me that if I told anyone that he would, that if I told anyone he would try and, he would try and kill one of my family members or someone that, or something, or someone that means a lot to me."
The complainant could not recall the precise words the appellant used. When asked if there anything else the appellant said to her, the complainant replied: "A Well when my mum, when my mum, my mum said, What did you do today? I sort a turned around and [the appellant] was standing there with a angry face thinking I was gunna tell but I didn't then because then I knew that something bad was gunna happen."
The interview continued: "Q81 O.K. Is there anything else that you want to tell me about that happened that day that you might not have told me in the first interview? A He also said that if I didn't, well if I, I don't know how to explain, that when, that if I would of like tried to pull away, or something, or escape, or something he said that he, said he would, he said he would probably do the same thing to my mum. Q82 What do you mean, He would do the same thing to your mum? A Because it was after the shower and, and it was when, it was when I was just about to get out of the closet because he had took me in there. Q83 Sorry. So which part are you talking about? Are you talking about the shower incident or are you talking about the bedroom incident? A The bedroom. Q84 O.K. And what did he say to you? A He said that if I didn't go along with him and I tried to get away from it he would do the same thing to my mum. Q85 So when, when he said that to you at what point or where were you in the bedroom at that time? A I was standing at the door. Q86 Which door is that? A The door for the closet. Q87 O.K. And is that when he said that to you? A Yes. Q88 O.K. And for him to say that to you what were you doing for him to say that to you? A I was just standing there and then I, I sort of had it going through my mind that he was gunna try and do the same thing that he did to me in the shower then he, then he pulled my arm and pulled me into the closet and then the, things happened that I told you last time I was here and then I got out and ran into my bedroom."
After being asked, "Is there anything different that you want to tell me about what's happened in that bedroom or in that closet that's different to the, to what you told me in the first interview?", the complainant replied, "No." The following exchange then took place: "Q90 … O.K. What's happened [ZK] is I've had a conversation with your mum a couple of weeks ago your mum has told me some things - - - A Mmm. Q91 - - - that you told her that you never told me in the first interview. A Yep. Q92 Are you withholding anything now? A I sort a kind of let them go because I was, I was about to go to a party and I didn't want those like thoughts to like ruin the party for me so I sort of put them in the back of my head and they've sort of slipped out so I can't really remember them now. Q93 Well this party you're talking about how long ago? A It was when I told my mum some things. Q94 When you told your mum some things? A Yes after the first interview. Q95 O.K. Because your mum's told me some things that you've told her that you haven't told me in the first interview. Can you remember what those things are? A No. Q96 Is it that you don't remember or you don't want to tell me? A That I don't remember. Q97 O.K. Is there any reason that after I had the first interview with you and you told me certain things in that interview that after the interview you've been talking with mum and you've told her things that you haven't told me in the first interview. Is there any reason for that? A Well that day I was feeling stressed out that day so, and, I was feeling stressed out that day and I had like a blank mind because I sort a wanted it over and done with so I sort a blocked out a few things that I didn't remember that day that I remember a few, that I remember like a month after I had the first interview. Q98 O.K. So you're saying you, you blocked some thing out before you came in to tell me to tell me. Is that right? A Well it was about a week or two before I saw you that I blocked them out. Q99 You blocked them out O.K. So is there some things, other things that have happened that you're not telling me about? A Not that I can't, not that I can remember. Q100 … All right. Is there anything else that's happened with [the appellant] besides that, on that one day in the bathroom and also in his bedroom? Is there anything else besides those two incidence that's happened with [the appellant]? A Well some times when I was, some times he would just give me a funny look but I didn't really think that meant anything."
Detective Craigie then informed the complainant that her mother had told her "about something that [the appellant] has tried to put his penis in your mouth." The following exchange occurred: "Q101 O.K. [ZK] what's happened is mum's told me about something that [the appellant] has tried to put his penis in your mouth. Is there anything that you can tell me about that? A Yes. Q102 Is that something that you know that it has happened and you didn't want to tell me today? A Well no but I sort of blocked it out after I told my mum so I didn't really have a hold of it in my mind. Q103 Can you tell me anything about that? A Basically that was pretty much in the shower as well. Q104 The shower that you're talking about is in the first interview you told me that you were in the shower and [the appellant's] come in, is it that one that you're talking about? A Yes. Q105 O.K. Have you told me everything about that shower incident? A Yes except for that and that was because I didn't remember it that day. Q106 You didn't remember it that day? A (NO AUDIBLE REPLY) Q107 O.K. Can you tell me something about that now how that happen? A Well he basically, I, basically I was sitting in the corner of the shower when I pulled myself off him and then he just basically held his penis and put it to my mouth and so I stood up really quickly and went out of the shower. Q108 O.K. So you said you pulled, you've pulled yourself off him in the shower and you sat in the corner - - - A Because he wouldn't let me out the door of the shower. Q109 What do you mean, He wouldn't let you out the door of the shower? A He was like, he sort a kneeling in the front of the shower door which was taking up the whole spot to get out of the shower. Q110 … O.K. And when you say that you couldn't get out of the shower what were you doing to try and get out of the shower? A I was screaming. Q111 Did you try to get out of the shower? A Yes I did but then he sort of pushed me back. Q112 All right. So tell me more about the part, can you tell me where you were sitting, or kneeling, or standing when [the appellant] tried to put his penis in your mouth? A Well I was sort of like, I was, well the shower's square (DEMONSTRATES) and the door was here and I was sitting in this corner with pretty much like, I sat in the corner pretty much like this - - - Q113 Yes. A - - - screaming. Q114 Can you tell me more about that because I'm just trying to get a picture of how that's happen? Can you tell me what he's done to try and do that? A Well he pushed me back into the corner because he wouldn't let me out of the door of the shower so I started to scream and then, so I'm pretty sure, so I stopped screaming, he tried to put his penis into my mouth. Q115 O.K. And how did he try to do that? A He just basically held it in his hand and leant towards my mouth."
The appellant lent towards her and she pushed him back and went out of the shower as soon as she could. His penis did not touch her mouth. She demonstrated how far away from her mouth it came. She was able to get out of the shower because when he came towards her he had to come from the side so she pushed him back into the corner so she could get out of the door. She said: "I just, I pushed, I just, well with all my strength I thought I'd just push the, I pushed the shower door open and ran out and shut the door behind me of the bathroom."
After that she put some clothes on and ran out to the trampoline. The interview continued: "Q134 So how come you told mum about this after I interviewed you the first time? A Because it sort a came up like a week or two afterwards. Q135 O.K. And how come that came up? A Because I was having a bad day. Q136 Is it something that you always known that that happen, that part you that told me about just now? A No because I blocked it out of my head. Q137 O.K. And how come you remembered it? A Because I was having a bad day and I sort of looked back to that day 'cause it was all that was on my mind and then I remembered it because I had a dream of the exact night and what, what it exactly felt like - - -"

Evidence in chief

The complainant gave evidence that she was currently 12 years old and was born in 2002. A few years ago her mother had formed a relationship with the appellant and they moved into a house together in Wilsons Creek. Living in the house was the complainant and her mother, and the appellant and two of his three sons, OJ and OA. Both OJ and OA were younger than the complainant. The events that the complainant later described to police occurred when the complainant was home with chickenpox.
The complainant gave evidence that before she spoke to Detective Craigie about what the appellant had done, she spoke to her mother but did not know how long before. She was asked (Tcpt, 10 June 2015, p 15(26-33): "Q. Can you tell us please can you recall now how you came to speak to your mother about what [the appellant] had done to you? How did the conversation with your mum start? A. Well, we were talking about stuff at school and we were doing a child protection program thing which demonstrates assaults and stuff and different types and then I realised that what he did was wrong and it sort of came to my head when I was talking about school to my mum."
When asked if she wrote something down on a piece of paper for her mum, she said she did because she was too scared to say it. She gave the piece of paper to her mum who asked her questions about what she had written. The complainant said she wrote more stuff down and gave it back to her mum.
The complainant was shown a piece of paper with her handwriting on it. She said she wrote "T-D-S-T-M" and gave that to her mum first. Her mother asked her to write it down because she could not understand it. The complainant agreed that was when she wrote down the other words that could be seen on the piece of paper. The piece of paper was admitted without objection (Ex 2) and the words were read to the jury.
The complainant had written: "TDSTM [TO] did stuff to me and its keeps popping into my head when ever I see him and it makes me scared and I think I know what you mean by 'stuff'."
The complainant spoke to her mother further after the initial conversation and before she was interviewed but she could not remember what she said. The complainant was aware that her mother spoke to her father about it.

Cross-examination

In cross-examination, the complainant agreed she watched the videos of the interviews played in court and she was satisfied that what she had said in the interviews was the truth. The complainant agreed that in the interviews she said the assaults occurred on a Tuesday. She knew that because that was the day of the talent show auditions and the day before the district cross athletics carnival.
The complainant said she was planning to do the talent show audition with her best friend at the time. The actual talent show was going to be the following week. She agreed she remembered that day because she missed out on the auditions.
The complainant agreed "the district cross" and "the district athletics carnival" were two different events. She agreed what she had said previously was that the talent show auditions were on Tuesday, which was the day before the district athletics carnival. It was put to her that the school newspaper, the "Durrumbul Rumble", listed the athletics carnival on Friday 15 June 2012. The complainant thought that might have been the school athletics carnival and that the districts school carnival was later. The complainant said the district athletics carnival included all the public schools from around the Byron Shire.
The complainant did not recall having a day off sick on Thursday 10 May 2012. It was put to her that when she missed school on 10 May 2012 she missed the district cross country. The complainant did not have any memory of either of those propositions.
The complainant agreed she said in the first interview that when she woke up her spots were itchy, so she was going to have a shower and put some cream on. She also agreed she said in the first interview that she was having a shower before putting cream on her spots, and that the appellant came into the shower. When asked if she was saying in the first interview that she got in the shower before anyone put any cream on her that day, the complainant said, "I got cream before I went into the shower and I was going to put more on afterwards" (Tcpt, 10 June 2015, p 22(31-32)). She said she was having a shower and was then going to put some cream on her spots.
It was put to her that she told her mother that the appellant had put cream on her spots and she did not like the way he was doing it. She replied that was before she got into the shower. She said she did not really remember that during the interview as she felt like she was under a bit of pressure and said only what came to mind. She explained that was why she went back a second time.
The complainant agreed that in December 2013, she told her mother that the appellant had done some things to her. She accepted that she had told police officers in the video that she had a shower in the morning before she was going to put some cream on her spots. The complainant did not remember if she told her mother 18 months later, after the events in December 2013, that the appellant had put some cream on her spots and had got into the shower with her to wash the cream off.
The complainant did not remember telling her mother that when she went in the shed that day with the appellant he tucked her into their bed. She could not remember telling her mother that or remember that happening.
The complainant was "pretty sure" she told her mother the appellant got into the shower with her and tried to pull her down onto his lap. She did not know if she told her mother that he put his finger in her anus. When it was put to the complainant that she did tell her mother that in December 2013, the complainant said she would not lie to her mother about something like that; she just did not remember it happening. The complainant's evidence continued (Tcpt, 10 June 2015, p 27): "Q. I suggest to you is what you told your mum was that [the appellant] had put his finger in your anus in the shower. What do you say to that? A. I don't know. Q. So you didn't tell your mother that [the appellant] had pulled you down onto his lap so that his penis went into your anus, did you? A. I'm pretty sure that's what I told her because it was really confusing me when - something about the finger because I didn't think it was anything to do with fingers. Q. When do you say it was really confusing you about the finger? A. Well, like the questions you're asking me. Q. So are you telling us that you're confused by my referring to the finger? A. Well, I don't know. I think I might've told my mum it was a finger because I didn't want to tell her the truth, what it actually was, but I'm pretty sure I told her what it actually was. Q. I thought you told us a couple of answers ago that you wouldn't have lied to your mother in these circumstances? A. Well, I wouldn't have, so I'm not sure. It was a while ago. Q. Yes, but are you telling us now that you think that you lied to your mother because the truth was more awful? A. Maybe. CROWN PROSECUTOR: The difficulty is, with respect, she hasn't agreed she in fact said anything at all to her mum. She has been speculating about what she might have said. HER HONOUR: She might have said it. I think you can go on to the next question, Mr Watts."
The complainant agreed that she did not say anything to her mother in December 2013 about the appellant trying to put his penis in her mouth. The complainant also agreed she did not say anything to the police during the first interview about the appellant trying to put his penis in her mouth. The complainant said that when the appellant got in the shower, he sat against the door of the shower and she stood against the back wall. She was reminded that she told police the appellant was sitting in the middle of the shower, and was asked if that was correct. She replied she did not know because she did not really remember. She thought it was more against the door of the shower.
She agreed the shower door opened outwards, and the appellant could not have leaned on the door and expected it to stay closed. The complainant agreed that although she referred to the details of what the appellant did with his penis in the shower, including her reaching behind and pulling it, she did not say anything to police about him trying to put his penis in her mouth. When asked if that was because nothing like that happened, the complainant answered, "It was because I didn't remember. Like I said before, I felt like I was under pressure and it didn't really come to mind" (Tcpt, 10 June 2015, p 29(45-46).
When asked why she went back to police on 10 April 2014, the complainant said that was because she had left out some things she did not remember at the time of the first interview. She agreed that as far as she was concerned, those things were the same things that she remembered the appellant had said to her. She agreed that although the police officer asked her if she also wanted to talk about anything else that happened in the shower, she paused for several seconds and said, "No". The complainant accepted that she hadn't come back the second time to tell the police about anything further that had happened in the shower.
The complainant agreed the police officer had to remind her she had told her mother that during the shower incident the appellant also tried to put his penis in her mouth. She agreed that when the police officer reminded her she was taken by surprise. The complainant disagreed she just made up an answer that would fit in with what the detective was asking her (Tcpt, 10 June 2015, p 42): "Q. When she asked the next question, 'Can you tell me anything about 'that'?' again I suggest to you that you answered, 'Basically', and then there was a pause of several seconds, and you said, 'That was pretty much in the shower as well'. Is that correct? A. Yes, well, exiting the shower. Q. I suggest to you that you had those long pauses because you were trying to think of something to say in answer to these questions that had caught you by surprise? A. Well, because I hadn't been thinking about them, like they weren't like in my mind. Q. I suggest to you that you just made up an answer that could fit in with what you were being asked by the detective. A. I didn't make up anything. Q. Did you tell your mother that [the appellant] had tried to put his penis in your mouth? A. Yes. Q. When did you tell her that? A. I'm not quite sure like when, but all I remember is I was swimming in the pool and then I was sad and then I was talking to her."
The complainant said that the swimming pool she was referring to was at the current house where they were living with her auntie, MM, and her partner MK.
The complainant said she first remembered that the appellant tried to put his penis in her mouth maybe a week before she told her mum, which was a couple of weeks before the second interview. The complainant agreed she wanted to put the memory of the appellant attempting to put his penis in her mouth out of her mind because she was going to a party. She said she had the memory before the party but she still went to the party. She was "pretty sure" it was a school friend's party but could no longer remember who the friend was or where the party was.
The complainant agreed that in the second interview she told police that when the appellant would not let her out of the shower she was screaming in a loud voice. She disagreed it was a "high pitched scream" or she was screaming some words. She said it was more like yelling. She agreed OJ and OA were in their bedroom and that it was a small house. She said anyone in the bedroom would probably be able to hear yelling or screaming from the bathroom. When asked whether the boys would have heard her, she answered, "Probably". She agreed later she went and played on the PlayStation with them. None of the boys asked her any questions about her yelling, and she did not ask them if they had just heard her screaming or yelling. She said she did not tell them that their father had just got in the shower with her.
It was put to the complainant that the incident in the shower involved pushing or wrestling and would have been "pretty noisy", and the complainant agreed. She disagreed that during the pushing or wrestling she screamed and yelled some more, thereby making even further noise. The complainant agreed she said in her interview that she pushed the appellant into the corner of the shower and pushed the shower door open. She then ran out of the bathroom and shut the bathroom door behind her.
Her further evidence on this subject included (Tcpt, 10 June 2015, p 50(30-40)): "Q. That would have been a pretty noisy wrestle to get out of the shower cubicle, wouldn't it? A. I guess. I don't really remember. I wasn't really concentrating on the noise. Q. No, but you guess that it would have been pretty noisy. Did you ask the boys whether they heard you wrestling to get out of the shower? A. No. Q. Did either of them say anything to you along the lines of, "Was dad in the bathroom with you"? A. No."
The complainant agreed that in the second interview, she said it was after she had a "bad day" that she told her mother that she remembered the appellant coming towards her mouth with his penis in the shower. The complainant was "pretty sure" she told her mother about this on a different day to the day she was going to the party. The complainant could not say how many weeks went by in the timeline of events between the first interview, her having the memories, and telling her mother about them. During further cross-examination, the complainant gave the following evidence (Tcpt, 10 June 2015, p 55-56): "Q. Was it in the dream that you saw these events that had been blocked out of your mind? A. No, not really. Well, yeah, I saw the events but I know they always happened - normally. Q. But you hadn't remembered them before the dream? A. Yeah. Q. But after the dream you did remember them. Is that what you're telling the police officer? A. Yeah. Q. You see, it's not true is it that [the appellant] tried to put his penis in your mouth in the shower? A. Well, it is true. It was what it felt like. Q. I'd suggest to you it's not true that [the appellant] even got in the shower with you. A. He did. Q. It's not true that he pulled you onto his lap and that his penis went into your anus? A. That is true. Q. I suggest to you it's not true that he put his finger in your anus. A. That's not true. Q. It's not true that he tried to put his penis in your vagina in the shed bedroom. A. That is true. Q. I suggest to you that it's not true that he assaulted you or in any way pushed you or did anything else physical to you in that shed bedroom when you had the chicken pox. A. That's true, because he did. Q. In that regard did you tell your mother that in the shed bedroom [the appellant] was yelling at you? A. Yeah, I'm pretty sure I did. Q. Is it true that in the shed bedroom that [the appellant] was yelling at you? A. Yes. Q. Correct me again if I'm wrong but you didn't tell that to the police officers in the videos that we've watched, did you? A. No. Q. So what do you say [the appellant] was yelling at you when you were in the shed bedroom on this occasion? A. I don't know what he was - he was just yelling at me to just like stay still. I don't really remember. All I remember is just him yelling. Q. So again just so we're clear, by yelling do you mean yelling at the top of his voice? A. No, he was just raising his voice at me. Q. Why did you tell your mother that he was yelling? A. Because it's what it felt like."
The complainant disagreed that the appellant did not make any threats to her as her mother was arriving home on the day of the incident. She did not remember the exact words he used. She remembered him saying something like, if she were to tell people or tell anyone what happened and he found out, then something would happen to one of her family members, friends, or someone she cared about or who cared about her. She remembered the appellant saying those things to her about a week after the first interview. She kept it to herself for a while. She did not want to let it get to her by telling anyone. The complainant agreed her mother asked her why she hadn't told her about the assaults earlier, and that was when she told her mother about the threats. She disagreed she just made up the threats as an answer to why she had not said anything about the assaults.
The judge decided to give the complainant a break, deciding that she was too tired to continue. MS, the complainant's mother, was interposed and the complainant's evidence continued on the next day. It is convenient to continue this summary of the complainant's evidence before summarising the testimony of her mother.
When the complainant's evidence resumed, she was taken to three weekly newsletters from the Durrumbul Primary School dated 12 June 2012, 18 June 2012 and 25 June 2012 (Ex C). The 12 June 2012 newsletter stated that the athletics carnival of 15 June 2012 was postponed to 22 June 2012 due to wet weather. The complainant did not remember that happening. The newsletter said on the following Friday the school would attend the annual small schools athletic carnival. The complainant agreed that was the athletics carnival she had been referring to in her evidence. She was "pretty sure" she remembered going to the small schools carnival but she did not know. She said she did not remember anything really. It was put to the complainant that the school attendance records indicated she was absent for Tuesday, Wednesday and Thursday and that it would appear she was at school on 22 June 2012 when the small schools athletics carnival was held. She agreed with the records but said that it was a long time ago and could not remember going.
The complainant agreed the newsletter dated 18 June 2012 also noted that the athletics carnival had been moved to 22 June 2012. The complainant did not remember reading the newsletter at the time.
The newsletter dated 25 June 2012 included photos of "[CB, CS and CZ]" enjoying the activities at the athletics carnival. The complainant agreed she recognised the children. She did not remember being at the athletics carnival with them. All she remembered was being at the cross-country with them. The complainant agreed the newsletter also noted that the final result from the carnival would be forwarded to the school to determine who would progress to the district carnival on 3 August 2012. She said, "Well, looking back now, I can't exactly remember whether it was district or normal, because it was a while ago" (Tcpt, 11 June 2015, p 99(39-40)).
The complainant agreed that when she was off sick on 19, 20 and 21 June 2012, the schools carnival had not even been held and no one had been selected for the district carnival from her group. She was "pretty sure" she missed the auditions for the talent show and missed the district athletics the following day, but it turns out that was not what happened.
It was put to the complainant that she told police she was assaulted the day before the district athletics carnival when that could not have been the case, and that she was making up the whole story of being sexually assaulted. The complainant said she wasn't making the story up and that it did happen.
The complainant was referred to the first interview. She agreed she described an incident where she was lying on the couch and the appellant lay next to her and put his hand on her hip, and she stood up and walked out of the room. When it was put to the complainant that this did not take place, she disagreed and said she remembered that incident.
The complainant agreed that in the first interview she described an incident when the appellant ran his hand down her back and squeezed her "butt". The complainant was "pretty sure" that incident happened in the house where she lived with her mother before they all moved in together at XXX Road. She agreed she told police all these incidents happened in the same year. It was put to her that she could not be right because she lived at XXX Road for all of 2012. The complainant said she did not have a specific memory of what years she lived in that house. She said she still remembered the incident and she was not making it up.
The complainant agreed that after her mother and the appellant split up, she asked her mother if she could contact the appellant to arrange getting together with him, OJ and OA. She did not remember how many times she did that. She did not accept that she was happy to catch up with the appellant, but said she was happy to catch up with his sons because they were her friends. She agreed she met up with the appellant and his boys in a park at Brunswick Heads and said, "…and then as soon as they got there I ran off because I didn't want to sit with him" (Tcpt, 11 June 2015, p 105(18-19)).

Evidence in chief

MS gave evidence that she was the mother of the complainant. She was separated from the complainant's father, ZD. She and ZD shared the care of the complainant, although the complainant spent most of the time with her. MS began a relationship with the appellant in early 2010. The appellant had three boys of his own. At the beginning of 2011 they moved into a house together at XXX. Shortly afterwards the appellant had care of his two younger boys, OJ and OA, for most of the time.
In 2011, the complainant and OJ went to Durrumbul Primary School and OA went to Cobbers Day Care in Mullumbimby. MS and the appellant ended their relationship in late July 2012. After they moved out of the house at XXX Road they did not share another house together.
In 2012, MS was working in Mullumbimby, Tuesday to Thursday and alternate Sundays. She started work at either 7:30am or 9:30am. If she started work at 7:30am, the appellant would take the complainant and OJ to the school bus stop in Mullumbimby. Generally the appellant would collect them after school. If the complainant was going to her father's place then he would arrange to pick her up after school. During 2012, the appellant did not have consistent employment and spent most of his time at the house.
MS was asked to describe the property at XXX Road. She said out the back of the house was a big shed (see Ex B). The shed was divided into two areas and the smaller area was further divided into two rooms. They used the smaller area as their bedroom and walk-in wardrobe, which was sectioned off and included a door. They had some freestanding clothes racks in there and a tallboy. Between MS and the appellant, that area got pretty messy and usually there was a bit of junk and clothes piled on the floor.
MS said that in 2012, the appellant's two boys and the complainant all got chickenpox. They had some cream from the chemist and MS got some herbal ointment from the herbal dispensary as well. OA was in Kindy at Durrumbul Primary School at that time and all three children spent time off school while they were sick.
By December 2013, MS and the complainant were living in one of the bedrooms at her sister's place. When a detached studio on the property became vacant, she and the complainant moved in there. They were in the studio after school on Wednesday 11 December 2013, spending time together. The complainant had just been at her father's place for two days so they were chatting and catching-up. MS said her daughter seemed to want to hang out and talk to her. Her testimony continued (Tcpt 11 June 2015, p 69-70): "A. She basically just said in this big conversation we were having, 'I need to tell you something, mum. Are you going to promise me you can't tell anyone,' that's right, and that's why I'm like, 'What?' She basically said, 'You know I really, really need to talk to you about something, but you can't tell anyone,' and that was the big thing. So I'm like, 'Okay, yeah of course, honey,' you know, 'you can talk to me about anything' and she started getting really distressed, and I'm like, 'You know, you can tell me' and she's like, 'I can't, I can't, it's too hard.' It was a bit hard, because I was feeling like this anxiety because something big, she wanted to tell me something big, and I was like freaking out, and I think she said something about [the appellant], and then I just went into panic mode. I'm like, it can't be anything like that, it can't be anything like that, and - sorry - and I'm like, 'You know, you can tell me anything.' She's like, 'I can't tell you.' She said something like, 'How about I write it down for you?' I'm like, 'Great. Great, do that.' And she just wanted to keep going and then she went in to the bedroom and I was sitting at the table-- HER HONOUR Q. Just, without going into what your thoughts were-- A. Sorry. Q. Try and just tell us what she did and said and what you said and did. A. And then she came back out of the bedroom with this little bit of paper all folded up, and I opened it and it had, just in capital letters, T-D-F-M something across the top, just these capital letters, and I'm like, 'I don't understand this, [ZK], you're going to have to write it out for me.' So she went back into the room and she came back and gave it to me, again all folded up, and it said something like, '[TO] did stuff to me,' and I can't get it out of my mind, and I think, you know, what sort of stuff, and while I was sitting there reading it, she ran to the corner and curled herself up in this little ball in these boxes that we had in the corner, and I just went over to her and held her and we just cried, and she was just crying, and I was like--"
MS then identified the words on Exhibit 2 that her daughter had written.
After MS comforted the complainant, they went to the kitchen where the complainant spoke more about what happened. MS said (Tcpt, 10 June 2015, p 71(6-23): "A. I can remember bits of it. Again, like, we were in pretty much a state of like trauma and my world was falling in, but we went back into the kitchen and we were sitting around the table. She told me it was when she had the chicken pox and that he was putting cream on her and it felt, she just said it just felt wrong, so she got in the shower to wash the cream off. Q. Yes. A. And she was really distressed, like she was hiccupping and sobbing and I remember thinking she looked like she was a little bird about to take off, because she was doing this, so it was - she wasn't totally clear, but then she's like, 'And then he got in the shower with me' and then she just started like she was going to take off, like - and she was, she was really broken, she was just like - and then, 'He was in the shower with me and he kept trying to make me sit down on his lap with him, and then he was touching me there'. And she said, 'And then it was inside,' and she just like totally took off and was super emotional and I'm just trying to hold her and - and then we were sitting again and she was, like, 'You know, that's why I was so funny about him picking me up from school like' - yeah, it's just--"
When asked if the complainant said anything else that happened between herself and the appellant, MS testified that the complainant said (Tcpt, 10 June 2015, p 71(37-45)): "A. He made her go into our room, like our separated room with her, and tried to fuck her up in bed. Yeah, and - again she was just getting really, really upset, like she wasn't making much sense, and it was really in bits and pieces and I was like, 'Honey,' and I'm asking her if this has ever happened before, and she's like, 'Not like this,' and I'm like, 'What did you do?' She said, 'I just got out of there and I went and sat with the boys.' And I thought, 'Oh my God, the boys were there,' what - and she said they were there the whole day, they were watching TV when he took her to the bedroom, our bedroom."
The complainant told her she had to "pinkie promise" that she would not tell anyone, and MS said that was the deal (Tcpt, 10 June 2015, p 72(6)).
She agreed that the first time she actually attended the Byron Bay Police Station was 23 December 2013. When asked if there were any conversations between the time the complainant told her about the incidents and when they went to the police, MS said that the next afternoon they talked again and the complainant would come out with little things here and there. MS said she had never written down anything that the complainant told her about the appellant.
MS testified that on the weekend following the Wednesday after the complainant returned from her father's, she told the complainant (Tcpt, 10 June 2015, p 72(43-46)): "I need some support. We need to tell our family. I want to talk to my sister, you know. She's our family. She needs to know this… Maybe we should - just think in your mind that maybe we should go to the police at some point".
MS said that sometime after the first interview, the complainant came into the kitchen while she was unpacking groceries and said something like, "And he tried to force me to put it in my mouth" (Tcpt, 10 June 2015, p 73(31-32)). MS did not remember what "it" was but got the gist of what she was saying. She said (Tcpt, 10 June 2015, p 73(35-38)): "I sort of threw my hands up because I was in complete trauma and went, 'Maybe you should talk to Detective Craigie about that,' and I didn't really talk to her any more about it at all."
MS remembered coming home on an afternoon when she had been at work and the complainant had chickenpox. She walked in and asked the appellant how the complainant was. He told her the complainant had got a "bit upset" that day when the nit comb fell on her head in the shower. MS thought the complainant must have been really upset because she wondered how a nit comb could hurt her head. The complainant came in and MS asked her how she was going and how her head was, and tried to make a fuss over her because she was sick. The complainant did not answer her. MS said (Tcpt, 10 June 2015, p 74(17-20)): "It was really sort of weird because [the complainant's] pretty quick to get any sympathy and I'm like, 'What's going on? Are you okay?' and she just sort of had this weird look and she wasn't talking to me. They were both just being really weird."
MS was asked if there was any discussion about the complainant's chickenpox. She said (Tcpt, 10 June 2015, p 74(23-33)): "… After that little scene I was sort of at the dining table with her and I'm like, 'So did you put the cream on today?' and she didn't answer me. I'm like, you know, '[TO], did she get her cream on?' I don't know, it was like they were talking in riddles. I just remember being really frustrated and confused. I'm like, 'But the new stuff from the herbal shop' - because I'm like, 'Was it better than the other stuff?' and I just couldn't get any answer out of any of them and that's why I remember this day because I just remember feeling so confused. I was like, 'What's going on?' and I got - I remember getting to the point that, 'Yes, she has some cream on.' I didn't know whether she'd put it on herself or [the appellant] had but yeah, she had some cream on and I was just like, 'You guys are doing my head in. Come on, [ZK],' yeah."
MS was asked about any other conversations with the complainant later that evening. She answered (Tcpt, 10 June 2015, p 74(43-48)): "She was sort of standing in the lounge room, sort of in the dark, sort of calling me over and she said - she was in a really - obviously she was in a very weird mood. I thought it was just because of the pox. She said, 'Mum, it's all sore around my bum. It hurts around my bum hole.' I'm like, 'Babe,' and [the appellant] was just sort of in the next room, in the kitchen, and he called out, 'She's probably got chicken pox on her bum,'…"
MS told the complainant that chickenpox went "everywhere" and that she might have worms. She said she was exhausted and just wanted to get the complainant into bed.
After they went to see the police the complainant continued to tell her "little things" (Tcpt, 10 June 2015, p 75(8)).

Cross-examination

In cross-examination, MS agreed she had at least a couple of conversations with the complainant after she first told her about the assaults and before they went to the police station. However, MS said the complainant "could not talk about it like she can talk about it now though so it was generally just more emotional exchange" (Tcpt, 10 June 2015, p 75(33-34)).
On the Saturday night after the complainant first told MS, MS, her sister, MM, and MM's partner, MK, met with the complainant's father, ZD at his place, and discussed what was happening. The next day, MS made an appointment with a detective at the police station. MS disagreed that they talked about what the complainant was saying the appellant had done to her so she could tell the authorities. She was going to tell the authorities her daughter said she had been assaulted. She agreed she was able to make a reasonably detailed statement but she had not seen her statement. MS agreed she indicated that the appellant had put some cream on the complainant's chickenpox, and that the complainant did not feel right about the way the cream had been applied and had showered to wash off the cream. She thought she told police that the appellant had come into the bathroom and got in the shower with the complainant. She remembered the complainant telling her that the appellant had continually tried to have her sit on his lap, and pulled her down towards his lap. MS disagreed she told police the appellant had put his finger in the complainant's bottom. She said, "No, because I - what I thought [the complainant] told me was when she said "inside her" I just assumed her vagina. That's what I thought. I didn't - yeah" (Tcpt, 10 June 2015, p 77(39-40)).
MS agreed that when the complainant said the appellant had touched her "down there", she thought she was referring to her genital region, but the complainant did not say he had put his finger in her vagina. The complainant kept saying "down there", "it was touching me down there, down there" and "inside me" (Tcpt, 10 June 2015, p 78(15-20)). It was all broken up and MS just made assumptions about what she was saying because the complainant was distressed. The complainant was sobbing and MS just held her and hugged her. She did not ask her for intimate details.
MS disagreed there were further conversations with the complainant about the details before they went to the police. She said the complainant did not want to talk about it much. MS agreed she did not get the impression the complainant was telling her the appellant had put his penis inside her or that there had been an assault to her anus. MS agreed her interpretation was that the appellant had put his hand or finger inside her vagina. She said, "… I could not grasp anything more than that. That was blowing my mind as it was" (Tcpt, 10 June 2015, p 79(41-42)).
MS was asked (Tcpt, 10 June 2015, p 80, 82): "Q. Do you have any explanation of why you would have said to the police officer that she told you that his finger went into her anus at this point in the shower? A. Again, it was my assumption. From the - she wasn't being clear, she was upset, she was hiccupping, she was almost hyperventilating, you know, she was getting a little word out here, a little word out there. I've just been over this with you. She was saying, 'He was touching me down there, trying to' - well, maybe I should have assumed something else, but that's just what - I could not comprehend what has since been revealed to me happened happened at that point. It's a really big step to try and comprehend that, and that's just what I-- … WATTS Q. My focus is, yes, not where inside her, but what part of him, to indicate that she said his finger went inside her. A. She didn't indicate what part. HER HONOUR Q. What part of him? A. She didn't indicate what part of him. She was sobbing and the conversation was very broken..."
MS said that from her recollection, the complainant went to her father's the day after the complainant was sick with chickenpox. Generally, the complainant went to her father's on Thursday nights and alternate weekends. The complainant spent Thursday night with her father and he took her to school on Friday. MS remembered ZD picking the complainant up on a day that she had been sick around that time. The complainant was very rarely sick and that is why it stuck out in her mind. However, she could not be certain if it was the usual Thursday night pick-up or if it was a Wednesday. MS and the complainant's father were quite flexible with each other.
MS agreed the complainant told her that after the incidents she stuck with "the boys" for the rest of the day and that they were watching TV.
MS was taken to Exhibit B - a floor plan of XXX Road. She disagreed the trampoline was in the correct position on the map. She said the trampoline was not quite next to the shed but was sort of down the hill on another little flat area. She agreed that in the middle of the house there was a small room with a lounge and TV. The lounge and TV were in the same location except the lounge was further up against the wall.
MS agreed the house was small. She said if you were talking in one room you could make yourself heard in another room, if it was quiet. She agreed the house was in a semi-rural area and was relatively quiet. Most of the noise around the house came from the occupants, namely the children playing music, watching television, singing or banging pots and pans. She agreed if someone was yelling or screaming in the bathroom you would be able to hear them throughout the house; however, that depended on what else was on. She agreed if someone was yelling or screaming in the bathroom you would expect to be able to hear them from the lounge room or the boys' bedroom. As for yelling from the shed, it depended on what was going on in the house. She said, "If we had the doors shut, the blender going or a TV on, probably not; but on a quiet afternoon, yeah, definitely" (Tcpt, 10 June 2015, p 88(17-19)).
In relation to the conversation she had after work with the complainant and the appellant when the former had chickenpox, MS said (Tcpt, 10 June 2015, p 88(24-26): "That day had always stuck in my mind a little bit because I just remember feeling really frustrated and confused because there was no logic and no sense."
MS said the reason she did not tell police about the conversation between herself, the complainant and the appellant when she made her statement on 23 January 2014, was probably because she was still in shock. She maintained she was still in a state of shock a month after the complainant told her. MS said she was at the police station for hours and her statement was mainly about the disclosure, history and what the complainant had told her.
MS agreed that after the complainant's first interview, the complainant told her that the appellant had tried to put his penis in her mouth. That would have been a week before she made her statement with Detective Craigie.
MS remembered that the complainant would dream about the appellant (Tcpt, 10 June 2015, p 90-91): "Q. Do you remember any conversations where she said to you that she had had a dream about what had happened to her on that night? A. I remember she would dream of [the appellant], like she'd say I've had an awful dream or a dream about - yeah, after she first told me she was having disturbing dreams. She didn't really go into detail but she was like I dreamed of him, I dreamed of him, yeah. I can't place it in any date time but it was just after she started - told me and it started coming up."
MS said she could not remember exact conversations but that the complainant had been having disturbing dreams about the appellant.
MS agreed that before the complainant told her about these events she had been behaving erratically and they were having difficulties in their relationship. She was asked in cross-examination (Tcpt, 10 June 2015, p 91(31-39)): "Q. Those difficulties, did some of them continue afterwards in between the two interviews? A. It wasn't really difficulties in our relationship, it was herself. After she told me, straightaway I could see the change in how she sat quietly and did some drawing and sang a little song, and seeing her so calm, I hadn't seen her like that in a long time. She's just been fighting. It was like she's fighting, she was fighting everything and being angry and hating and stuff like that. I seen her change, straight after she told me I seen her change, but then it, you know, builded it up again."
MS could not remember the complainant going to a party around the time she told her about the further memory.
Exhibit 2 was shown to MS. In relation to the complainant's note, "And I think I know what you mean by stuff", MS said she had not used the word "stuff" to the complainant previously. She disagreed she had ever asked the complainant questions along the lines of, "Has [the appellant] done stuff to you?" (Tcpt, 10 June 2015, p 92(24-25)).
MS agreed the complainant spent time with her paternal grandparents at South Golden Beach. She agreed the mother of the appellant's children also lived at South Golden Beach. MS remembered the complainant had told her that she had seen OJ, OA and the appellant on the beach when she was with her grandfather. The appellant had spoken to the complainant's grandfather on the beach while she was talking to the boys. MS had been told this by the appellant when they met at a park to catch up and let the kids play together. MS was not sure when that was but said it was obviously before the complainant told her about the assaults.

Detective Senior Constable Hilda Craigie's evidence

Detective Senior Constable Hilda Craigie, a member of the Ballina Child Abuse Squad, arranged to interview the complainant on 15 January 2014. On 23 January 2014, Detective Craigie took a statement from MS. During that interview, MS produced a note handwritten by the complainant (Ex 2).
During the course of the investigation, Detective Craigie contacted the Durrumbul Public School and obtained relevant attendance records and newsletters.
On 1 April 2014, MS spoke with Detective Craigie and told her that the complainant had provided her with additional information concerning the appellant. As a result of that information, the complainant was interviewed again on 10 April 2014. MS also made an additional statement that day and provided other recollections from the time the complainant had chickenpox.
In cross-examination, Detective Craigie agreed that apart from the complainant's allegations, the appellant had never been subjected to any allegations of a sexual nature.
Detective Craigie agreed she made enquiries at Durrumbul Public School and obtained the newsletter dated 10 May 2012.

The appellant's interview with police

The appellant was interviewed by Detective Craigie and Detective Senior Constable Catherine Kirby on 17 April 2014. A recording of the interview was played to the jury (Ex 4). During the interview, the appellant denied all allegations that he had sexually assaulted the complainant.
He had never been in the bathroom when the complainant was in there and did not recall having ever walked into the bathroom when the complainant was in the shower. He assisted the complainant to put cream on her chickenpox spots. The appellant remembered rubbing sores on her legs and possibly on her stomach and chest. He said occasionally the complainant would run from the bathroom to her bedroom but that happened very rarely. He had never seen her in her bedroom without any clothes on.
The appellant did not give evidence during the trial.

Evidence in chief

After the completion of Detective Craigie's evidence, the Crown case closed.
OJ, son of the appellant, was called as a witness in the appellant's case. He was 11 years old at the time of the trial. He remembered moving to 34 XXX Road at the end of 2010 but did not know how old he was. He had been attending Durrumbul Public School since Year 2 and was in Year 6 when he gave evidence. OJ remembered having time off school when he had chickenpox. He remembered the complainant and his little brother were home, and he and the complainant had chickenpox at the same time. He believed he was home for more than one day. He did not remember who was home looking after them.
OJ remembered that the appellant would put cream on his spots as treatment for chickenpox. He did not remember if the complainant had any spots nor if she had any cream put on her.
OJ did not particularly remember what he was doing the first day he was home sick. He could, however, remember playing with OA or the complainant in their room with some cards or on the PlayStation.
He usually had his bedroom door open because the doorknob was "a bit messed up." When the door was closed it would not open very easily. OJ was asked if he remembered if the door was open or closed the day he was playing with OA, but OJ said he did not remember being in his bedroom; he said, "I don't particularly remember anything" (Tcpt, 11 June 2015, p 122(44)). When asked if he could remember anything that he did on the first day he was home sick, he said he remembered playing with his brother in their room. He did not remember whether the door was open or shut. He did not remember noticing his father or the complainant around the house during that day.
OJ did not hear any screaming, yelling, arguing, loud talking, or bumping or wrestling noises from the bathroom. He agreed that, from his memory of the house, he would have heard someone screaming from the bathroom because his bedroom was "pretty much" right next to the bathroom. He did not hear the complainant screaming or yelling or his father talking in a loud or angry voice. He did not remember if the complainant had a shower in the morning on any of the days that he was home with chickenpox. OJ did not remember seeing the complainant run out of the bathroom to her bedroom, outside around the trampoline or to the verandah of the property next door. He agreed he could see the trampoline from his bedroom because his bedroom had big glass doors.

Cross-examination

In cross-examination, OJ agreed his bedroom was not next to the bathroom although he said it was closer than it looked in the diagram. He agreed his father had spoken to him about the time he had chickenpox.
OJ agreed he had said he did not remember being in his bedroom that day but had also said he remembered playing in his room with his little brother. He agreed that both of those could not be true. He said the one that was true was the one where he did not remember if he was in his room or not. He agreed he told an untruth because he was there to help his dad. He agreed he did not really remember whether his dad was at home or not when he had chickenpox. OJ agreed it was four years ago and that was a long time ago.
Following the completion of OJ's testimony, the appellant's case closed.

Crown's closing address

As the Crown's closing address to the jury is the focus of Ground 1, it is useful to recount those parts of the Crown's address that are controversial.
The Crown addressed the jury on 11 June 2015 (Day 3). The Crown submitted that the jury would find the complainant's account compelling because of the way the disclosures came about, "they were tearful, they were hesitating, they were clearly painful", and because "[t]he manner in which she told her mother what had been happening to her points very strongly to the truth of what she says" (Tcpt, 11 June 2015, p 2(9-12)).
The Crown noted the level of "striking detail" in the complainant's account. The Crown submitted (Tcpt, 11 June 2015, p 2 (34-36))): "So think about this members of the jury, she was 11 years of age when she was giving this account, if it's all false, if it's all false then not only is she a consummate story teller but she is an extraordinary actress as well." [Emphasis added.]
After reviewing the complainant's evidence about the events in the shed bedroom, the Crown submitted (Tcpt, 11 June 2015, p 3(24-41)): "…Think of this again, if she's making up this conversation think what she must have done, think what her thought processes must have been. She must have accurately recalled that the boys were home which we know objectively is true. She has to have located them in another part of the house not in the shed. She has to have decided that the accused's motivation for taking her into the wardrobe was to get privacy away from the boys. Then she has to have attributed that motivation to the accused and let him spell it out, that is, "I don't want the boys to see". You think about how sophisticated a bit of thinking that is, to construct such a conversation that attributes motivation, has the male person utter the motivation, it's "I don't want them to see, just be quiet" implying a fear that they're going to be doing something which is going to create a disturbance which might be heard. This is an amazingly sophisticated bit of thinking for an 11 year old you might think if it's made up, you might think that someone who writes detective fiction for a living might come up with a plot line and a story line but not a young child, not the one that you've seen giving evidence these last couple of days." [Emphasis added.]
The Crown concluded by commenting on the locations of the alleged assaults (Tcpt, 11 June 2015, p 6(3-17)): "… So when you're considering these competing accounts I want you to think about something that is significant about [the complainant's] account and it is where she says these things happened. The shower. On her account the accused was going to and did have sexual intercourse with her and she stopped it as quickly as she could and got out of there but think of this members of the jury if the accused had ejaculated in the shower what evidence would there be of it and the answer is there'd be none, it would be washed away, it could be simply denied. Think about the wardrobe, a pile of clothes, the pile of his clothes that she says that she was pushed onto and had her pants taken down, if he had ejaculated onto his clothes he could pick them up and he could wash them. There'd certainly be nothing on the matrimonial bed for [MS] to find when she came home. So what do those two places have members of the jury in common, they have deniability, they have deniability." [Emphasis added.]
At the completion of the Crown's address, the members of the jury were informed by the judge that they would hear from Mr Watts, the appellant's counsel at trial, the next day. The members of the jury were reminded by her Honour to keep an open mind until they were asked to retire and consider their verdicts.
In the absence of the jury, Mr Watts complained to the judge about the final two rhetorical questions put to the jury by the Crown about the appellant ejaculating in the shower or into his clothes. Mr Watts submitted that this was inviting the jury to speculate that this was deliberately done to give deniability. Mr Watts also complained about what was said to be the Crown's use of inflammatory and emotive language.
Following discussion with Mr Watts and the Crown, the judge said she would say something about the state of the evidence to the jury. Her Honour reminded the Crown that there was never any suggestion that the appellant had ejaculated or of the possibility of DNA. Her Honour then adjourned the trial until the next day.
Upon resumption of the trial (Day 4), Mr Watts, in the absence of the jury, sought a discharge of the jury on two grounds. The first ground was that the Crown's address invited the jury to speculate that the locations (the shower and the closet) of the alleged offences were chosen because of their deniability. Mr Watts submitted that was an invitation by the Crown to the jury to speculate about the motive of the appellant in choosing the locations of the alleged crimes, "being such that they would prevent the capture of any evidence upon which [the appellant] could be effectively prosecuted" (Tcpt, 12 June 2015, p 2(14-16)).
The second ground was that the Crown's argument that the complainant's evidence must be "an amazingly sophisticated lie" (Tcpt, 12 June 2015, p 3(9)) reversed the onus of proof. In referring to what had been said by the Crown, Mr Watts did not have the benefit of a trial transcript. He put to the judge that the rhetorical questions asked by the Crown focused the attention of the jury on whether they were satisfied that the complainant had been able to come up with a sophisticated and elaborate lie rather than on the question of whether they were satisfied beyond reasonable doubt of the honesty and accuracy of her evidence.
Following further discussion, the judge said that she would not discharge the jury but would direct the jury to not approach the matter by asking whether the appellant had explained how the complainant could have made up her account.

The judge's directions to the jury

During her summing up, the judge dealt with the matters raised by the appellant's counsel. Her Honour directed the jury (SU 37-38): "It was submitted to you by the Crown Prosecutor that if it is all false, all of what she said is false, then she, in order to produce such detail in the way that she did to her mother, you would perhaps conclude that she was a consummate storyteller and actress. Again that was a submission made to you on behalf of the Crown case done in order to highlight the importance of that detail. What you must do, members of the jury, is be very careful in having regard to that submission and that evidence that it does not lead you to a line of reasoning that it is the accused who must prove something, for example that the accused must prove that she is a consummate liar and storyteller. The accused has no onus of proof and the Crown Prosecutor did not intend to suggest that but it may flow from what was submitted to you that you may think it is a line of reasoning that suggests it is for the accused to show that she was a liar and an actress. By all means it is necessary for you to have regard to the detail of her account and the Crown submits to you when you have regard to that, that you would accept her as credible, honest and reliable but please do not follow along any line of reasoning that it is for the accused to show that she is a liar and an actress. Aside from the detail, as I think I have already mentioned, the Crown relies on the way in which her complaint was made to her mother. You would have regard to her distress just in talking about it but bear in mind the cautions that I have given you in relation to the use to which you can put such distress. There was a final submission made on behalf of the Crown that if you considered the complainant's account and you considered from that the choice of locations where these things are alleged to have occurred, that is the shower and the bedroom where his clothing and so on is, but that might be a very fine place, a perfect sort of place to commit such offences and have any evidence that might be available, wash away in the shower or be explicable by it being on his bedding or part of his clothing. Mention was made by the Crown of that prospect, as I understood it, of any DNA evidence being washed away and so on. Members of the jury there is clearly no evidence of that kind, as you might expect because the allegations were made and the investigation by police was so long after the alleged incidents and it would be wrong of you to speculate or wonder about that type of evidence. In addition to that, the submission made on behalf of the Crown that it gave the accused 'deniability' given that he made a choice about committing an offence in the shower or in the bedroom, would suggest that the accused made a thought-out deliberate choice about where these acts would be perpetrated. Again there is no evidence about whether he made a choice or about whether it was a spontaneous act, assuming of course you accept what the complainant says. It is a bit of a chicken and egg type of submission to you I would think and would be one that you would not place weight on or need to give consideration to."
Earlier on in the summing up, her Honour directed the jury that the burden lay on the Crown to prove the guilt of the appellant beyond reasonable doubt, and the appellant was not required to prove his innocence.
The jury was sent out to deliberate late on 12 June 2015. On Day 5 of the trial, at 2:57pm, verdicts of guilty were returned on each count.

Ground 1: Her Honour's refusal to discharge the jury as a consequence of aspects of the Crown Prosecutor's address to the jury occasioned a miscarriage of justice

Submissions

Mr Barrow, the appellant's counsel on appeal, pointed out that the application for discharge of the jury rested on two complaints: first, the Crown's submission that the appellant chose the shower and bedroom for the commission of the offences because of their deniability; and second, that the Crown's address invited the jury to accept the complainant as a witness of truth unless satisfied that she was a "consummate story teller" and "extraordinary actress".
Mr Barrow argued that the Crown's submissions invited the jury to speculate and relied on his own observations and stated opinions. Mr Barrow submitted that by characterising the complainant's account in this way, the onus of proof was reversed as the appellant was required to meet and answer the proposition that the complainant lacked the ability to lie in such detail or with such apparent sincerity. The Crown's submission to the jury was that unless satisfied that the complainant had the capacity to lie in such a sophisticated and elaborate way, the jury should accept the complainant as a witness of truth.
Mr Barrow contended that the judge's directions could not remedy the unfairness occasioned by the Crown's address. The submissions were made at the end of Day 3 of the trial. The jury then went home. The judge's directions were not given until much later on Day 4 of the trial, well after defence counsel had completed his address to the jury.
Mr Balodis, who appeared for the Crown on appeal, agreed that the Crown's submissions to the jury at trial may have reversed the onus of proof. However, he submitted that her Honour was correct in assessing them as submissions that could be dealt with by firm directions, which her Honour gave. Mr Balodis argued that regardless of any delay, this Court should assume that the jury took heed of those directions which removed any prejudice to the appellant that may have been occasioned.

Consideration

The judge had the discretion whether to discharge the jury. Her Honour acknowledged that those parts of the Crown's address (at [137] above) may have invited the jury to impermissibly speculate about the appellant's motive in choosing the locations of the alleged offending. The Crown's address may also have reversed the onus of proof when the jury came to consider the honesty and reliability of the complainant's evidence. Her Honour considered that any potential prejudice to the appellant could be overcome by the directions which she gave to the jury (at [144] above).
Whilst acknowledging that the judge will usually have a better appreciation of the significance of the matters complained of in the context of the trial, the question for this Court is: "whether… the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice": Crofts v R (1996) 186 CLR 427; [1996] HCA 22 at 441.
It is the case that the Crown's address concluded on the afternoon of Day 3 of the trial and her Honour's summing up commenced on Day 4, after Mr Watt's closing address concluded. However, the judicial directions given by her Honour dealt with the matters of potential prejudice plainly and with firmness.
In my view, the members of the jury could not have been left in any doubt as to the correct approach to the essential matters for their determination before they commenced considering their verdicts. Any danger to the fairness of the appellant's trial was eradicated by the instructions to the jury. No risk of a substantial miscarriage of justice was occasioned by her Honour's refusal to discharge the jury.
Ground 1 has not been established.

Ground 2: A miscarriage of justice was occasioned by trial counsel's failure to seek a direction pursuant to s165B of the Evidence Act 1995 (NSW) regarding the forensic disadvantage suffered by the appellant by reason of the delay in complaint

Submissions

At the commencement of the hearing of the appeal, Mr Barrow obtained leave, without objection, to read an affidavit of Mr Watts sworn 17 May 2016. It is convenient to recount the affidavit before proceeding to Ground 2: "2. During the course of the trial I did not consider seeking a direction from the trial judge to the jury pursuant to s165B of the Evidence Act 1995. 3. Had I considered the issue I would have sought such a direction with regard to the significant forensic disadvantage suffered by the applicant as a consequence of the delay in complaint. 4. The most significant feature of the disadvantage occasioned by the delay at the trial was the difficulty experienced by the applicant's son, OJ, in recalling the events in question."
The appellant submitted that the delay before the complaint was made caused him a significant forensic disadvantage.
The appellant pointed to a statement not being taken from his son, OJ, despite OJ's presence in the house when the offences were alleged to have been committed. The complainant's account of the events in the shower involved screaming or yelling and she accepted that her struggle to exit the shower cubicle would have been noisy. The house was small and a loud noise in one part of the house would be heard in other parts of the house. The appellant submitted that the complainant's evidence of subsequent events would have been potentially memorable matters if OJ had been asked about them in a timely way. The complainant also said that she had played the PlayStation with OJ and his recollection of her presentation and demeanour could have been important. The appellant argued that the same could be said for the complainant's evidence of the events in the shed.
The appellant referred to OJ having virtually no memory of the day and his being unable to say whether the appellant had been home. It was unsurprising, the appellant said, that OJ struggled to recall any details.
Although the delay was not of the "extraordinary length seen in some historical sexual assault trials", the appellant argued it was a very substantial period of time in the context of this case, given OJ was only 8 years old at the time. It was submitted that a timely complaint would have allowed his recollection to be recorded.
Another argument was that the delay in complaint meant that there was no possibility of a contemporaneous medical examination of the complainant's anus and no opportunity to examine the crime scene. The appellant was confined to denying the allegations against him.
Although Mr Watts did not seek a direction pursuant to s 165B of the Evidence Act 1995 (NSW) ("Evidence Act 1995"), the appellant submitted that Mr Watts's affidavit demonstrated that this was an oversight. The appellant contended that the significant forensic disadvantage caused to him by the delay in complaint should have been the subject of an application on the part of the defence counsel. Furthermore, it should have prompted the judge to ask Mr Watts whether a warning was sought. The appellant submitted that the failure by his counsel at trial to seek a direction pursuant to s 165B did not abrogate the common law obligation of the judge to give a direction necessary in the circumstances to avoid a perceptible risk of a miscarriage of justice, and Greensill v R (2012) 37 VR 257; [2012] VSCA 306 ("Greensill") was cited. The absence of a direction in the circumstances of the case was said to have occasioned a miscarriage of justice.
The Crown pointed out that the terms of s 165B required an application by a party; however, if there was a common law duty, as referred to in Greensill, the question remained whether there was a significant forensic disadvantage. The Crown contended that Mr Watts elicited from the complainant information about her limited interaction with OJ and his brother after the incident in the shower. It formed part of the evidence that was relied upon by the appellant to put to the jury that nothing had happened in the shower that day because OJ had not heard or seen anything untoward. The Crown argued that the appellant had sufficient contemporaneous evidence to make this submission and a significant forensic disadvantage had not been suffered.
As to the lack of a contemporaneous medical examination, the Crown submitted: 1. The penetration complained of was brief and the degree of penetration was unknown but was unlikely to be significant. The presence of noticeable injury to the complainant's anus was unlikely and had there been some irritation its probative value (particularly when the complainant was suffering from chickenpox) might have been questionable. A contemporaneous medical examination may have resulted in the same finding and the same conclusions as the examination on 12 July 2014. 2. As many complaints of child sexual abuse are not contemporaneous, the lack of a medical examination conducted shortly after the alleged offence should not per se be the basis for a finding of a significant forensic disadvantage. 3. The term "significant forensic disadvantage" suggested more than the opportunity to examine a complainant for the possibility of injury. The results of any examination may support the Crown case or be intractably neutral, neither of which would support an accused person in their defence. The Crown submitted that delay did not mean that evidence that would have favoured an accused person inevitably had been lost, and cited R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60 at [13]-[16].
The Crown contended that it was difficult to see what a more contemporaneous examination of the house could have revealed that was of significance to the issues in the trial. The Crown's argument was that the appellant did not suffer a significant forensic disadvantage and ground 2 should be dismissed.

Consideration

Section 165B of the Evidence Act 1995 is as follows: "Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section: (a) delay includes delay between the alleged offence and its being reported, and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. (7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following: (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable."
The following is a summary of the effect of s 165B: 1. The duty on the judge to give a direction in accordance with subsection (2) arises only on application by a party and what is said to be the particular significant forensic disadvantage must form part of the application: Groundstroem v R [2013] NSWCCA 237 ("Groundstroem") at [56]. 2. Subsection (5) prohibits the judge from directing the jury "about any forensic disadvantage the defendant may have suffered because of delay" otherwise than in accordance with the section: Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [53] ("Jarrett"). 3. There is a duty to inform the jury of the nature of the disadvantage and the need to take that disadvantage into account when considering the evidence, only when the judge is satisfied that the defendant has "suffered a significant forensic disadvantage because of the consequences of delay": Jarrett at [53]. 4. Subsection (3) provides a rider to the obligation to inform where the judge is satisfied there are "good reasons" for not taking that step: Jarrett at [53]. 5. Subsection (4) prohibits the judge from suggesting that it would be dangerous or unsafe to convict the defendant "solely because of" the delay or the disadvantage. Otherwise, no particular form of words need be used: Jarrett at [53]. 6. Whether there has been a significant forensic disadvantage depends on the nature of the complaint and the extent of the delay in the circumstances of the case. The extent of delay is not the test. It is the consequence of delay which is decisive: Groundstroem at [61]. The proper focus of s 165B is on the disadvantage to the accused: Jarrett at [60]. 7. The concept of delay is relative and judgmental. Although various factors may contribute to a delay, where a significant element is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction, pursuant to the exception in s 165B(3): Jarrett at [61]-[62]. 8. If the accused is put on notice of the complaint, any failure to make inquiry thereafter will not normally constitute a consequence of the delay, but a consequence of the accused's own inaction: Jarrett at [63].
In the present case, Mr Watts neither asked the judge for a direction in accordance with s 165B, nor did he submit that the appellant suffered any significant forensic disadvantage as a result of the delay. It appears from his closing address to the jury that he was content to rely on OJ's evidence that he had not heard anything. Mr Watts said (Tcpt, 12 June 2015, p 32(35-41)): "It's another bit of evidence that you take into account to consider whether the Crown has proved that he has committed this offence on this occasion. You would expect [OJ] to hear this, he, I would suggest to you, came across as a very decent boy who was doing his best to answer honestly and who made concessions where appropriate but he was very plain that he hadn't heard anything along these lines, he would've expected to hear them if they had occurred and the only conclusion from that evidence is that they didn't occur."
Nothing was said by the judge to the jury about any forensic disadvantage that the appellant may have experienced as a consequence of the delay in the complaint and the need to take that disadvantage into account when considering the evidence.
At the conclusion of her Honour's summing up, Mr Watts asked for some re-directions, none of which concerned any disadvantage because of the delay in complaint. Accordingly, r 4 of the Criminal Appeal Rules applies and leave of the Court is required.
In his affidavit (see [156] above), Mr Watts states that he did not consider seeking a direction from the judge pursuant to s 165B. He states that had he done so, he would have sought such a direction, the most significant disadvantage being the difficulty experienced by OJ in recalling the events in question. Mr Watts was not required for cross-examination. I accept that he did not seek such a direction because of an oversight, and not for tactical reasons.
In my opinion, this raises two questions. First, as neither party applied for a forensic disadvantage direction, was the judge permitted on her own volition to give such a direction? Second, if the judge was permitted to do so, was the judge obliged in the circumstances of the case to give such a direction?
Section 165B replaced the common law position enunciated in Longman v R (1989) 168 CLR 79; [1989] HCA 60 at 91, which required the jury to be warned that by reason of delay, it would be dangerous to convict on the evidence of a complainant alone.
In Groundstroem, Adams J (Macfarlan JA and Button J agreeing) said at [55]: "It will be seen from subs 165B(5) that the section is the sole source of a judge's authority either to warn or inform the jury about any forensic disadvantage that a defendant or accused may have suffered because of delay." [Emphasis added.]
The identification of s 165B(5) as being the sole source of the judge's authority to give a forensic disadvantage direction appears to suggest that unless the requirements of s 165B are complied with, a judge cannot give such a direction. However, Groundstroem was a case where s 165B was discussed by the trial judge with defence counsel and an application was made for a forensic disadvantage direction.
In Greensill, the Victorian Court of Appeal (Redlich, Osborn and Priest JJA) concluded that notwithstanding the provisions of s 61 of the Crimes Act 1958 (Vic) and s 165B of the Evidence Act 2008 (Vic), a trial judge may, even absent an application from the defendant, give a forensic disadvantage direction, although, if given, the direction must comply with s 165B(4). The Court said at [45]-[48]: "[45] As has been observed, both s 61(1E) of the Crimes Act and s 165B(5) of the Evidence Act provide that a trial judge may not give a warning about forensic disadvantage except in accordance with this section. Moreover, both ss 61(1A) and 165B(2) require that a warning be given on the application of the accused if the judge is satisfied that the accused has suffered a significant forensic disadvantage. An important question that arises is, absent an application by the accused for a forensic disadvantage warning, is a trial judge either obliged or permitted to give a warning if the trial judge is of the opinion that the circumstances warrant such a warning? [46] There are two possible views. The first is that each section requires an application by the accused before any forensic disadvantage warning is given; and that, absent such an application, the judge is prevented from giving a warning. [47] An alternative view is that an application by the accused is not an indispensable precondition before a warning can be given, but that once a warning is given, it must be in accordance with the respective section. In other words, the duty or capacity of a trial judge to give any warning, necessary or practical to avoid a perceptible risk of a miscarriage of justice, is unfettered, but once a direction is given, the judge must not warn the jury that it would be dangerous or unsafe to convict solely because of the delay (or the consequences of delay); must inform the jury of the nature of the forensic disadvantage; and must direct the jury to take the forensic disadvantage into account. [48] We are of the opinion that the latter view is to be preferred. It is consistent with the common law obligation of a trial judge to give any direction necessary in the circumstances to avoid 'a perceptible risk of [a] miscarriage of justice.' Spigelman CJ, writing extra-curially, described this as 'a clear statement of the principle of a fair trial.'" [Footnotes omitted.]
Although there are some differences between s 165B of the New South Wales Evidence Act and the Victorian provision, these differences did not materially impact upon the reasoning in Greensill.
The obligation of a trial judge to give a warning that is necessary to avoid a perceptible risk of injustice, notwithstanding that such a warning has not been requested, has been discussed in cases concerning s 165 of the Evidence Act 1995. Section 165 applies to evidence of a kind that may be unreliable and subsection 2 provides that a warning is to be given that the evidence may be unreliable if there is a jury and a party so requests.
It is well established that there is no obligation on a judge under s 165 to give a warning if it is not requested by a party: Evans v R (2007) 235 CLR 521; [2007] HCA 59. However, the obligation may otherwise arise. In R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166, the Court (Tobias JA, James and Howie JJ) said at [125]: "Section 165(5) of the Evidence Act provides that s 165 does not affect any other power of a trial judge to give a warning to a jury. Even if no party requests that a warning be given, one must be given 'whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.' Longman v The Queen (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ; R v Stewart (2001) 52 NSWLR 301 per Howie J at 318 (86). A warning may be required where the courts have special knowledge or experience about the kind of evidence which has been given which a jury may not possess or where there is a risk that a jury may attribute more weight to the evidence than it actually deserves. See R v Baartman [2000] NSWCCA 298 at [62] and R v Stewart at [97] and [101]." [Emphasis added.]
A similar approach was adopted in R v Hunt [2003] NSWCCA 301. Tobias JA said at [52]: "Section 165(2) only requires the trial judge to warn the jury that the relevant evidence may be unreliable where a party requests such a warning. The appellant made no such request and hence the section had no application. Section 165(5) preserves the power of a trial judge to give a warning or to inform a jury about a matter arising from the evidence. A trial judge is required to give such a warning if that is necessary to avoid a perceptible risk of a miscarriage of justice: Longman v The Queen (1989) 168 CLR 79 at 86. The principle was articulated thus by Deane J at 95-96: 'A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury'. See also R v Johnston (1998) 45 NSWLR 362 at 369-370 per Spigelman CJ (with whom Sully and Ireland JJ agreed); Crampton v The Queen (2000) 206 CLR 161 at 207-209 per Kirby J; R v Stewart (2001) 52 NSWLR 301 at 318 [82] and [86] per Howie J." [Emphasis added.]
The view that the failure by a party to apply for a forensic disadvantage direction does not preclude a judge giving such a direction in accordance with s 165B, in order to avoid a perceptible risk of a miscarriage of justice, finds support in s 9(1) of the Evidence Act 1995, which provides: "Application of common law and equity (1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment."
Section 165B(5) provides additional support by the inclusion of the words, "… but this section does not affect any other power of the judge to give any warning to, or to inform, the jury." [Emphasis added.]
In my opinion, the judge was not prevented from giving a forensic disadvantage direction in the present case even though defence counsel did not ask the judge for such a direction. However, I am not persuaded in the circumstances of the case that such a direction was necessary to avoid a perceptible risk of a miscarriage of justice for the following reasons: 1. In his address to the jury, defence counsel relied upon OJ's evidence that he had not heard anything (see [168] above). During the summing up, the judge sympathetically dealt with this argument. Her Honour said (SU 35): "A good deal of attention was focused upon her account that she was screaming or yelling to get out of the shower at the time of the incidents that gives rise to counts 1 and 2. It is submitted that this was not far from where the sons of the accused were, in another part of the house. They were indeed in a place, it was submitted, on all accounts where if she had screamed and yelled out she would have been heard and yet there is no evidence from [OJ], at least, that such an incident was heard and nothing was seen by him on that occasion. His evidence was subject to challenge and he ultimately conceded that he had difficulty in remembering what happened at all that day. You would need to pay very careful attention to that of course. In relation to this screaming and or yelling by the complainant and considering the evidence as a whole consider for a moment the matter from the point of view that you have and counsel have in asking you to consider this evidence while sitting back here some four years later focusing on these particular incidents and focusing on what is said to be screaming and yelling at the time of one of these incidents and the complainant running out with no clothes on. Events from this point of view you might think would, if seen and heard, be remembered. You might also though want to bear in mind that first of all you have the passage of time between 2012, when these things are said to have occurred, and when [OJ], at least, was asked to recall them some time later. It may well be that he could not recall any yelling or screaming but bear in mind as well in this regard the evidence from the complainant's mother. She agreed in essence that if someone screamed or yelled out in the bathroom or there was some noise, you would hear them from most parts of the house, though perhaps not the other side of the house." [Emphasis added.] In the circumstances of the trial, the forensic disadvantage to the appellant by reason of the delay in interviewing OJ was not significant. 1. The complainant underwent an anal examination on 12 July 2014. The examination findings neither confirmed nor denied the alleged anal sexual assault. The appellant's submission referred to a consequence of the delay being "no possibility for any contemporaneous medical examination of the complainant's anus." No submission was made as to how such a contemporaneous medical examination might have assisted the appellant's case. As the Crown pointed out, the penetration complained of was brief and the degree of penetration unknown but unlikely to be significant. It seems to me that it is likely a contemporaneous medical examination would have resulted in the same neutral findings as the examination in July 2014. It is possible but less likely given the degree of penetration that a contemporaneous medical examination may have resulted in a finding adverse to the appellant's case. For the Court to be satisfied that the appellant has suffered a significant forensic disadvantage, there must be more than mere supposition. The same observations may be made about the appellant's complaint of having no opportunity to examine the crime scene. I am not satisfied that the appellant has suffered a significant forensic disadvantage because of the consequences of delay. 2. The complainant gave evidence of threats uttered by the appellant and said that she did not complain because she was scared. If an application had been made to her Honour for a forensic disadvantage direction, it was open to the judge to find that the appellant's misconduct significantly contributed to the delay and any forensic disadvantage was not a consequence of the delay in complaint. Furthermore, the complainant's testimony of these threats provided a good reason for the judge not to comply with s 165B(2): Jarrett at [62].
Ground 2 has not been established.

Ground 3: The verdicts are unreasonable and cannot be supported by the evidence

Submissions

The appellant contended that the following matters supported his complaint of unreasonable verdicts: the alleged offences were committed during the day, in a small house and at a time when the appellant's two sons were at home, the 18 month delay before the complaint was made (despite the appellant and MS's earlier separation), there being no forensic evidence or witnesses, and the appellant's denial and lack of any prior criminal history.
The appellant pointed to inconsistences and other matters in the complainant's account which were said to undermine the reliability of her evidence: 1. In cross-examination, the complainant said she disclosed the offences to her mother after doing a child protection program at school. However, in her second interview she said that she did not tell her mother earlier because of the appellant's threats. The appellant contended that it would be inherently unlikely that the complainant would need to have been told that the appellant's conduct was wrong. 2. She did not mention penile-anal intercourse, count 2 or the appellant's threats in her initial complaint to her mother. 3. MS recalled that the complainant told her that the appellant had put cream on her chickenpox, she had a shower to wash it off, and that the appellant had tried to tuck her into bed. The first interview made no mention of these things. 4. The appellant submitted that the complainant had told MS that the appellant had "tried to tuck her up in bed." The appellant referred to the complainant's cross-examination, where she was asked if the appellant had tucked her into bed, and the complainant could not remember if she had said this or whether it had occurred. 5. It was an agreed fact that the complainant said to her mother that the appellant had digitally penetrated her anus. The complainant conceded in evidence that she may have told her mother something different to this, and if she said it was a finger it may have been because she did not want her mother to know the truth. 6. Count 2 and the threats were not disclosed until the second interview when the alleged fellatio was raised by Detective Craigie. The appellant described the complainant's explanations for failing to mention this as "unconvincing". 7. The appellant contended that the complainant's accounts of counts 1 and 2 were "inherently unlikely". The appellant referred to the sizes of the appellant and complainant, the dimensions of the shower, her various descriptions of the offences and her account that she physically prevailed over the appellant.
In summarising the argument about count 2, the appellant contended that the factual description of the movements of the appellant and complainant seemed unlikely and there was no evidence other than the account of the complainant. Even after the initial delay of 18 months before raising the appellant's alleged conduct with her mother, this incident was not mentioned and was entirely omitted from the first interview. The appellant pointed to the complainant's failure to refer to it during the second interview despite repeated invitations by Detective Craigie. It was only when Detective Craigie directly raised the incident that the complainant provided an account. The appellant referred to one of the appellant's explanations for not previously mentioning the alleged offence being that she recalled it after a dream.
Another argument was that the complainant's account of extricating herself from the incident constituting count 3 was inherently unlikely, as a slightly built 9 year old girl had physically prevailed over a man in his thirties.
Other inconsistencies in the complainant's account were mentioned, including the complainant's response in the first interview that after she and her mother had stopped living with the appellant, she had not spoken to him and had tried to avoid him; whereas in evidence the complainant and her mother accepted that there had been subsequent contact with the appellant.
The appellant submitted that the Court should view the complainant's two interviews and the appellant's ERISP. The complainant's physical size and demeanour was said to be apparent from the interviews and this was relevant to the assessment of the reliability of her account. During the hearing in this Court, the tender of the ERISP was not pressed.
In the appellant's oral submissions, the Court was referred to the shower cubicle being slightly under one square metre, to the respective sizes of the complainant and the appellant, and to the complainant's account in relation to the events in the shower where "she effectively physically prevailed over the appellant" (Tcpt, 21 September 2016, p 20(40-44)). As to the complainant's demeanour, the appellant said that it was markedly different in the two interviews. The Court's attention was particularly drawn to the complainant's demeanour during the second interview when she was pressed by Detective Craigie to provide further information.
As to MS's testimony of the complaint made by her daughter about a sore bottom, the appellant argued that MS had not referred to this complaint in any statement to police and, furthermore, the complainant had chickenpox at the time. It was submitted that this evidence raised questions as to the reliability of MS's evidence and was not a matter of great moment.
The appellant argued that after an assessment of the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of his guilt of each of the three counts. It was said that this was not a case where the jury was at an advantage in seeing and hearing the evidence. Whilst the unsatisfactory nature of the complainant's account was most pronounced in relation to count 2, her evidence was contended to be as a whole so unsatisfactory so as to give rise to a reasonable doubt about his guilt.
Another option, the appellant said, was to quash count 2.
The Crown submitted that the manner of the complaint added to its veracity. The complainant's account was detailed and there was no reason for her to make a complaint other than the fact that she was still upset because of it.
In respect of inconsistencies in the complainant's evidence, the Crown contended that it was unsurprising that a child could be in error as to when an event occurred and confuse the time of its occurrence with other events. The complainant's mother added her account of the unusual behaviour of both her daughter and the appellant on a day when the complainant had chickenpox.
In respect of count 2, the Crown contended that disclosures of sexual abuse are often delayed and details are often revealed gradually or not at all. As to the alleged threats, the Crown pointed out that MS gave evidence that the complainant wanted her to promise not to tell anyone of what the appellant had done.
The Crown submitted that the most disturbing aspect of the appellant's offending for the complainant was count 2. This was said to explain the delayed complaint. A further contention was that the size of the shower would have allowed the type of conduct alleged and might well have allowed the complainant to leave the shower in the manner described. The Crown added that for the appellant's submission to succeed there needed to be more evidence of the sizes of the complainant and appellant to measure how much space each of them would have taken as explained by the complainant.
Another argument was that penetration of the complainant's anus by the appellant pulling her onto his erect penis as he sat cross-legged could be achieved given the complainant's age and size.
As to the appellant's contention that the complainant's accounts of extricating herself from the various incidents were inherently unreliable, the Crown pointed out that the complainant did not allege force or threats by the appellant in order to achieve penetration in count 1. It was only with respect to count 3 that there was a preceding threat and some force. The Crown argued that the appellant was not so forceful that the complainant could not overcome his resistance. It was suggested that may have been because there were other persons in the house and the appellant felt he was limited in what he could do.
The Crown contended that the appellant's convictions were based on firm evidence from the complainant that had support from her mother's observations, and Ground 3 should be dismissed.
It was submitted that playing the JIRT interviews would result in the Court conducting a limited retrial involving only part of the evidence adduced at the trial. The appellant's reasons for playing the footage were said to lack the requisite detail, and there were many reasons why the complainant's demeanour may have changed between the first disclosure of abuse to her mother and the formal process of explaining that abuse to police. The Crown contended that the Court should not view the interviews.

Consideration

In Sio v R [2015] NSWCCA 42, Leeming JA summarised the legal principles applicable to an unreasonable verdict ground of appeal. His Honour said at [40]: "This proposed ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question on appeal is whether 'upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty': M v The Queen [1994] HCA 63; 181 CLR 487 at [7]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at [31]-[34]. This being a question of fact, it is necessary for the Court to decide by making its own independent assessment of the whole of the evidence: M v The Queen at [63]; SKA v The Queen at [14] and [20], while having regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and which has had the benefit of having seen and heard the witnesses: M v the Queen at [7]; SKA v The Queen at [13]."
In Libke v R (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised (at 596-597) that the question is whether the jury must, as distinct from might, have entertained a reasonable doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
It is well established that it is not sufficient for a verdict to be reasonable that there was evidence on which a jury could convict. As was said in CH v R [2014] NSWCCA 119 by Bathurst CJ (with whom Hoeben CJ at CL and Adams J agreed) at [149]: "If after giving full weight to the primacy of the jury the court is left in reasonable doubt as to the verdict, it is only where the advantage of the jury in seeing and hearing the evidence is capable of resolving the doubt can a court conclude there was no miscarriage of justice (see also MFA v The Queen supra at [26] and [53]-[56])."
When affirming these well-known principles, the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said in R v Baden-Clay [2016] HCA 35 at [65]-[66]: "[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'" [Footnotes omitted.]
The Court has been invited to view the video recordings of the two interviews. Firstly, it was suggested that a comparison could be made between the physical sizes of the complainant and the appellant. Secondly, it was suggested that the Court could see changes in the complainant's demeanour in each of the interviews.
As to the first reason for playing the footage, the complainant was 9 years 11 months old at the time of the alleged offences and 11 years 6 months old when first interviewed. In my opinion, the Court would derive little benefit from seeing the complainant's stature at the time of the interviews, which were conducted well after the events said to have occurred in the shower. I am prepared to accept that the complainant was an 11 year old girl of slight build when interviewed. The Court had the benefit of seeing the appellant by videolink during the hearing of the appeal. The considerable disparity between the physical dimensions of the complainant and the appellant at the time of the alleged offending is a matter of common sense.
As to the second reason, to accede to the appellant's request would place undue focus on the interviews, which formed only part of the complainant's evidence. Her demeanour during the further evidence she gave in chief and in cross-examination was undoubtedly important to the members of the jury in assessing her honesty and reliability. To confine the Court's assessment of the complainant's demeanour to the footage does not assist the Court in making its own independent assessment of the whole of the evidence.
Accordingly, I decline the invitation to view the video recordings of the two interviews.
Turning to the appellant's complaint of an unreasonable verdict in count 1, it is true that there are differences between the complainant's account of cream being placed on her chickenpox and her mother's recollection of what was said. It is also true that the complainant's account of the appellant's penis going up her "butt" was not mirrored by the information recorded by Detective Sheehan when he spoke to MS on 23 December 2013. It was an agreed fact that the police officer was told that the appellant digitally penetrated the complainant's anus with one of his fingers.
However, what was said by MS to Detective Sheehan was based on her recollection of what her daughter told her after school on 11 December 2013. MS explained how she made assumptions about what her daughter was saying because the complainant was distressed. She described the emotional impact that her daughter's disclosures had upon her.
The members of the jury were also entitled to take into account the complainant's discomfort in speaking about the appellant's penis and in recounting as an 11 year old what had happened to her when she was 9 years old.
Certainly, the complainant did not mention in the first interview that the appellant threatened her. In her oral evidence in chief, she explained that it was after the child protection program that she realised what the appellant had done was wrong. However, it does not necessarily follow that these reasons for delay in the complaint are inconsistent.
The note on which the complainant wrote "TDSTM" (Ex 2), objectively supports the difficulties experienced by the complainant in disclosing to her mother what had occurred.
Notwithstanding the complainant's chickenpox, it was open to the jury to consider that MS's description of her daughter as being in "a very weird mood", and her recount of their conversation which included, "Mum, it's all sore around my bum. It hurts around my bum hole" (at [95] above), provided objective support for count 1. There is nothing to suggest that MS's evidence could not be regarded by the jury as being both honest and reliable.
I do not agree that the complainant's account of count 3 was "inherently unlikely". The jury was aware of the physical differences between the complainant and the appellant. It was open to the jury to accept the complainant's account of how she came to escape from the appellant when he tried to put his penis into her vagina. In the first interview, she said that she kicked him "there" and he went back onto the floor (see [31] above).
The jury was also entitled to have regard to MS's recollection of her daughter telling her on 11 December 2013 that the appellant "tried to fuck her up in bed" (see [88] above), and to the complainant's rejection during cross-examination of questions asserting that what she had said occurred in the shed bedroom was untrue.
Some reliance appears to have been placed by the appellant upon the suggestion that the complainant had told her mother about the appellant trying to tuck her up in bed. The complainant had no recollection of saying that. Furthermore, MS did not give evidence that her daughter made such a statement nor was she cross-examined about it. Such criticism of the complainant is baseless.
The appellant's argument about count 2 is summarised at [187] above. These matters were brought to the attention of the members of the jury in the judge's careful summing up. Her Honour said (SU 12-13): "There may be though a reason aside from a particular concern about the complainant's reliability. Here in relation to count 2, for example, which is the charge that relates to her allegation that the accused attempted to put his penis in her mouth and held his penis near her mouth. That, as you will recall from the recent addresses, she told the police officer only in the second interview and after she had had a dream. It was also something she said after some prompting from the police officer. She said that it did happen but she had forgotten about it. With respect to that particular charge the Crown made the concession, and it is right to do so, that you would need to be careful about how you scrutinise the evidence in relation to that particular charge. Now of course, as I said, the complainant remained adamant that the account she gave of that particular incident happened. Although she had the dream she was not saying she dreamt it up, as I understood her evidence, she said the dream about him in effect - it is a matter, I should say of what you make of her evidence in this regard - but it prompted her recollection of those events and brought this back to her mind. She remains, as I say, adamant that in fact it occurred, in her evidence. But if you had a reasonable doubt about that because of the circumstances and so on, you would acquit the accused of that charge."
Other directions on count 2 by her Honour included the following (SU 34-35): "Some considerable significance, it was submitted, relates to the shower incident, and that the complainant had entirely left out, when she first spoke to the police, the act of attempted oral intercourse that is relied on to prove count 2. Further to that it is submitted that she fundamentally changed the chronology and the positioning when they were in the shower. In that context I have already mentioned that you would be careful in looking at this evidence because of the way she has described it coming to her mind after this dream that she said she had. You would also need to give it close examination in terms of the way it was elicited. She was asked by the police officer in that second interview, and in the first interview, if there was anything else that she had to say more than once and she said there was not. It was only after the police officer asked her a leading question, by that I refer to the police officer saying: '[ZK] what's happened is mum's told me about something that [the appellant] has tried to put his penis in your mouth?' Because of the way it came to light it is a piece of evidence that you need to take some care with in the light of the complainant not being able to remember anything more and it only coming out in response to that leading question with the words being virtually put into her mouth. She, the complainant, now maintains that did in fact occur. She was adamant about that and says it was something she forgot that these are things that she did not want to have to think about. You will need to take those matters into account in considering that part of her evidence and particularly what weight you would place on the evidence of that count because of the way in which it came to light."
The judge drew the jury's attention to the complainant's evidence of screaming or yelling, to OJ's evidence that he had neither seen nor heard anything, and MS's agreement that, "in essence that if someone screamed or yelled out in the bathroom or there was some noise, you would hear them from most parts of the house…" (SU 36).
The jury needed to exercise care before accepting the complainant's evidence for the reasons given by the judge. The jury was obliged to weigh the competing evidence, including the complainant's delay in raising the events that constituted count 2, the prompting by police in the second interview, the complainant's references to a dream, the mechanics of how the alleged offence may have occurred in the confines of the shower, the respective sizes of the appellant and the complainant, her evidence of yelling and screaming, OJ's evidence that he had not heard anything, the appellant's record of interview, and the judge's directions concerning the appellant's good character.
In carrying out the weighing exercise, the jury had for their consideration MS's evidence that her daughter had told her after the first interview of the attempted fellatio (see [92] above). This complaint preceded the leading question by police in the second interview. Other evidence to be considered included the complainant's explanation to police that she had blocked it (the attempted fellatio) out of her mind, as well as her demonstration as to how she got out of the shower.
The complainant's discomfort in talking about the appellant's penis is evident from the following exchange during the first interview: "Q147 O.K. And can you describe what his penis looked like? A I don't really feel comfortable telling that and it's …. …. question. Q148 O.K. Let, let's talk about that, how come you feel uncomfortable about that? A Because when I sort of look back to it I find it as a really disturbing image and it's sorta brings up emotions and makes me feel sad. Q149 O.K. It's really important that we do talk about that part because it gives us an understanding of what you saw at the time. And I'm really sorry that makes you very emotional and it's hard for you to say that but it's something that we really need to talk about. A Maybe before I tell you could I have a drink of water? … [Break in interview] Q155 So you saw him holding his penis in his, in his right hand when he told you to come and sit down - - - A Mmm Mmm. Q156 - - - can you describe to me what his penis looked like to you at the time? A It pretty much looked like another piece of skin but attached here and it was like, it had, it, hairy and stiff."
This is a matter that the jury was entitled to take into account when assessing her delay in disclosing the attempted fellatio.
The members of the jury were entitled to consider that MS's recollection of what she had been told by the appellant about a nit comb falling upon the complainant's head in the shower, and her observation that the appellant and the complainant were "both just being really weird", supported the complainant's accounts of what had occurred.
I do not agree that the complainant's evidence of counts 1 and 2 was "inherently unlikely". The dimensions of the shower were an agreed fact. Being aware of the physical differences between the complainant and the appellant, it was not unreasonable for the jury to accept the complainant's description to police and in cross-examination as to how she managed to get away from the appellant. The evidence of the complainant could not be said to be wholly unreliable. It is evident from the judge's remarks on sentence that the complainant was an impressive witness. Her Honour said (ROS 7): "When she was giving her evidence in the trial the witness impressed as a thoughtful and intelligent young person. She was prepared to make concessions as were appropriate and in my view was truthful and reliable."
This is not a case where the jury's advantage of having seen and heard the witnesses called at trial may be disregarded.
After giving full weight to the primacy of the jury and having independently assessed the whole of the evidence, I am of the opinion that it was open to the members of the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each count. I am not persuaded that the jury must have been left with a reasonable doubt as to the appellant's guilt on any count.
Ground 3 has not been established. Accordingly, the appeal against conviction should be dismissed.

Ground 4: Her Honour erred in the manner in which she applied Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) when sentencing the appellant

Submissions

The appellant complained that the judge's approach to the sentencing of an offender convicted of a standard non-parole period offence has been rejected since R v Muldrock (2011) 244 CLR 120; [2011] HCA 39. The appellant argued that her Honour erred in asking whether or not there were factors that warranted departure from the standard non-parole period when considering the sentence for count 1.
The Crown contended that the judge's remarks did not indicate a two-stage approach inconsistent with Muldrock. Her Honour acknowledged the effect the standard non-parole period had on the sentence to be imposed upon the appellant, whose antecedents did not offer much in mitigation. In oral argument, Mr Balodis submitted that although her Honour's remarks had the hallmarks of R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, they could be explained by the appellant's limited subjective case.

Consideration

Before concluding that the objective seriousness of count 1 fell within the mid-range of objective seriousness but "probably falls towards the mid-range but at the lower end of that range" (ROS 9), her Honour observed, when considering the appropriate sentence for count 1: "In particular there is clearly here a need to consider what if any departure there can be from the standard non-parole period of 15 years imprisonment. Given that the offender was convicted by a jury and there has been a finding that the offending falls within the mid-range, it is difficult to see that there should be a significant or substantial departure from the standard non-parole period."
In my respectful opinion, her Honour's remarks do not comply with the judgment in Muldrock where the High Court held at [25]-[28] that a court is not permitted, when sentencing for a standard non-parole period offence, to embark upon a two-stage approach, commencing with an assessment of whether the offence falls in the mid-range of objective seriousness, and, if it does, asking whether there are matters which warrant a longer or shorter non-parole period.
At no stage did the judge refer to the standard non-parole period as a guide or yardstick. It appears that the judge placed determinative significance on the standard non-parole period. As error has been demonstrated, Ground 4 has been established. I would grant leave to the appellant to appeal against sentence.
Accordingly, the appellant is to be sentenced afresh in the exercise of this Court's independent discretion: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [42].

Ground 5: The sentences imposed upon the appellant are manifestly excessive

It is unnecessary to consider this ground.

Re-sentence?

The appellant does not have to establish that the sentence imposed by her Honour was manifestly excessive for the Court to exercise its discretion in his favour under s 6(3) of the Criminal Appeal Act 1912 (NSW).
I have had the advantage of reading the draft judgment of Fagan J in relation to the sentence appeal. I agree with the conclusion of his Honour and the orders which his Honour proposes.
BUTTON J: I agree with the proposed order and reasons of Price J with regard to the appeal against conviction. In particular, on my own assessment, ground 3 is not established.
I also agree with his Honour that error has been established in the appeal against sentence.
As for re-sentence, I agree with the proposed orders and reasons of Fagan J.
FAGAN J: I agree with Price J's conclusions on the grounds concerning conviction and add only the following observations. With respect to ground 1, the Crown's submission to the jury that the complainant was likely to have been telling the truth because fabrication of an account such as that which she gave in evidence should be considered beyond her capacity, in my judgment did not convey an implicit suggestion that the appellant bore the onus of proving the complainant had invented her allegations. I do not consider that the concession regarding this, made by the Crown on the appeal as referred to by Price J at [150], was necessary.
Regarding ground 3 I have independently examined the trial evidence, particularly that of the complainant and especially in relation to count 2. Like Price J I consider it was open to the jury to resolve all of the issues concerning the complainant's evidence, as raised by defence counsel in final address and which have been agitated on the appeal, in favour of accepting her account of the events of each charge, beyond reasonable doubt. I do not consider that the jury must have been left with a reasonable doubt on any of the counts.
The evidence in relation to count 2 had to be evaluated with care because of the manner in which the complainant's first mention of this emerged. That is, during a conversation with her mother after her initial interview with police and then, in a subsequent police interview, under prompting and leading questions based upon the recollection she had earlier passed on to her mother. The jury were appropriately directed to scrutinise the complainant's evidence on count 2 with particular care in the passages that of the summing up quoted by Price J at [220] and [221]. It was open to the jury to accept the complainant's evidence on this count, beyond reasonable doubt, if they saw fit after reviewing it in accordance with these directions.

The appeal against sentence

As her Honour's sentencing decision is flawed by the error Price J has identified under ground 4, the question is whether any lesser sentence is warranted in law. In my opinion a significantly lower sentence is warranted for each of the offences and overall. I have reached this conclusion taking into account the statutory maximum penalties, the standard non-parole period for the offence against s 66A(2), the objective seriousness of each offence and the subjective circumstances of the appellant - with due regard to patterns of sentencing by New South Wales Courts for offences of this type.
Count 1, laid under s 66A(2) Crimes Act, was objectively the most serious of the three offences: a single instance of anal penetration of a 9-year-old complainant who was the stepdaughter of the appellant, himself aged 33 years at the time. The two counts contrary to s 66B, whilst serious in themselves, were relatively much less serious than count 1. Each s 66B offence was in the nature of attempted intercourse, oral in count 2 and vaginal in count 3.
Up to 31 January 2003 s 66A provided for an offence of sexual intercourse with a child of under 10 years carrying a maximum sentence of 20 years. From 1 February 2003 that was increased to 25 years. From 1 January 2009 to 28 June 2015 the original form of the offence was located in subs (1) for which the maximum penalty remained at 25 years but an aggravated form of the offence was created in subs (2) with a maximum of life. Circumstances of aggravation included that the victim was under the authority of the offender, actual or threatened infliction of bodily harm, commission of the offence in company and a number of other factors. This was the form of the section under which the appellant was charged, on the basis of his position of authority as the complainant's stepfather. From 29 June 2015 the separate aggravated form of the offence was repealed. The original form has since then been retained in subs (1) but with a maximum penalty of life imprisonment, expressly subject to the Court's power under s 21 Crimes (Sentencing Procedure) Act 1999 (NSW) to impose a finite term of years.
Pursuant to ss 54A-54D of the Crimes (Sentencing Procedure) Act the standard non-parole period for the offence, including in its aggravated form as enacted between 1 January 2009 and 28 June 2015, has been 15 years at all times since standard non-parole periods were introduced. For the s 66B offence the maximum penalty was 25 years. No standard non-parole period was prescribed for these offences at the time they were committed.
The legislative developments referred to at [249] have followed a consistent trend upwards in setting the range of severity of punishment which the courts have been empowered to impose for sexual intercourse with very young children. This no doubt reflects increased community awareness of the lifelong harm done to the victims of such acts, universal abhorrence of this crime, alarm arising from publicity regarding its prevalence and corresponding legislative determination that heavier penalties should be available and be applied to achieve denunciation, general deterrence and protection of the community.
In fulfilling their duty to give effect to the will of the Legislature in this regard the courts have recognised significant variation in the degree of objective seriousness which may be exhibited from one instance of this crime to another. Any form of sexual intercourse with a child under 10 years is an appalling act but it may, for example, be much worse when accompanied by violence and induced fear or when it is part of a repetitive course of abuse. The crime may be more serious if the victim is of an age well below 10 years rather than just below. If the perpetrator is a close family member, for example the child's natural father, the offence may be objectively worse because of the greater damage that may be done to the child's sense of security. There are numerous other variables.
I take into account that the appellant had no prior history of offences of a sexual nature. He had convictions for only petty crimes, going back to 2010, two years before the subject events. He had not previously been imprisoned. Her Honour's adoption of a "guarded" approach to rehabilitation was justified where the offender remained in denial of the offences and had not expressed remorse or accepted responsibility. On the other hand, the three offences proved against him all occurred on the one day, in one location and with one victim. So far as the evidence went these offences had no relevant precursor. The appellant had on one occasion squeezed the complainant's bottom. Unlike many cases of this type, the appellant had not engaged in repeated abuse of the complainant over a sustained period. There was no indication of persistence after this single episode or of an uncontrollable propensity. The appellant remained living with the complainant and her mother for about another year after the offences were committed. Specific deterrence was not a prominent objective in the sentencing exercise.
In the following references to comparable cases I have recounted the essential integers of other sentencing decisions, as briefly as possible, to permit comparison with the objective circumstances of the appellant's offence and with subjective considerations relevant to him. In all of these other cases, as in the present, there was evidence of long term adverse psychological and social effects upon the child. That is a constant, invariable common factor in the sentencing parameters for offences against s 66A.
The following caution was sounded by Johnson J in RR v R [2011] NSWCCA 235 at [152] regarding the use to be made of sentencing outcomes in other cases in the determination of an appeal on the ground that a manifestly excessive sentence has been imposed: "[152] Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons: Wong v The Queen (2007) 207 CLR 584; [2001] HCA 64 at [58]; Hili v the Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59]. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]."
On the other hand, the Court is bound to have regard to the sentences passed in like cases, provided that true comparability can be shown, in order to achieve consistency of sentencing. In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6] Gleeson CJ said: "[6] … All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency."
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Crennan and Kiefel JJ reiterated this as follows (some footnotes omitted) "[28] 'Equal justice' … requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65]: 'Equal justice requires identity of outcome in cases that are relevantly identical It requires different outcomes in cases that are different in some relevant respect.' (emphasis in original) Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. … [29] General concepts of 'systematic fairness' and 'reasonable consistency' in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [47] - [56]. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is 'consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.' That kind of general consistency is maintained by the decisions of intermediate courts of appeal. ..." [Emphasis added].
The concepts of systematic fairness and reasonable consistency referred to in this passage as applying to Commonwealth criminal law are, equally, aspects of the administration of New South Wales criminal justice. The last sentence of the above extract, to which I have added emphasis, was reaffirmed in Hili v The Queen; Jones v The Queen [2010] HCA 45 ("Hili") at [56]: "Consistency in federal sentencing is to be achieved through the work of the intermediate courts of appeal." Again this is a statement of equal application to New South Wales sentencing. These statements of the High Court appear to me to impress a specific duty upon this Court, when determining whether a lesser sentence is warranted in law, to examine sentences passed in other like cases, particularly where they have been approved in this Court or passed by this Court upon resentencing.
The purpose of the comparison is to consider whether the sentence under appeal, viewed against the comparative decisions, reflects "consistency in the application of the relevant legal principles". This does not merely involve checking that the principles have been articulated. The level of penalty imposed must be explicable by reference to the principles applied to the specific facts of the case and must bear a reasonable proportion or relationship to the levels of penalty in like cases where the same principles have been applied to materially comparable facts.
High Court authority supports reference to sentences passed in comparable cases not just for the restrictive purpose of achieving consistency in the application of the criminal law but also for the positive purpose of the sentencing judge or intermediate Court of Appeal drawing upon the collective wisdom of other judges in determining how to synthesise the objective and subjective features of case, the statutory maximum penalty and all other relevant considerations into a term of years. In Hili at [54] this aspect was expressed as follows: "[54] In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303] - [305], Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out [at [303]], a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said [at [303]]: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence' [at [304]]. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' [at [304]] (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned' [at [304]]."
My consideration of the following comparable cases confirms my judgment that an appropriate sentence for count 1 on which the appellant was convicted, the offence against s 66A(2), would be 12 years imprisonment with a non-parole period of 9 years. I consider that the significantly higher sentence imposed by her Honour is only explicable on the basis of an underlying misapplication of principle, given that the application of principle by this Court on past occasions in circumstances comparable to those of the subject offence has led to much lesser penalties. Respecting Johnson J's caution quoted at [255], my conclusion that the sentence imposed was greater than was warranted is not arrived at merely on the simplistic basis that other sentences passed under the same section have been lower.
R v AJP [2004] NSWCCA 434: This case involved an single count laid under 66A in respect of which an additional offence of aggravated indecent assault (s 61M(2)) was taken into account. These crimes were committed in September 2003 when the maximum penalty was 25 years. The offender was sentenced after pleading guilty and received a discount of 25%. In this Court his sentence was increased to 5 years with a non-parole period of 2 years 6 months. Undiscounted, for purposes of comparison with the present case, that would have been a sentence of 6 years 8 months with a non-period of 3 years 4 months. The offender was 22 years old, he was the uncle of the complainant, an 8 year old girl, and had been entrusted to care for her and her 10-year-old brother for a day. He had forced the complainant to perform fellatio on him and had required her to remove her clothes. The indecent assault taken into account was constituted by him placing the complainant on his lap and moving her body to rub her vagina against his penis. The offender had no criminal record and his subjective case was stronger than the appellant's because he had pleaded guilty, expressed remorse and was undertaking counselling.
This decision must be treated with some caution because it was heard and determined when R v Way was good law. The sentencing judge in the District Court had found that the offence was in the mid-range of seriousness but had fixed a non-parole period which was only 10% of the standard. The Court of Criminal Appeal concluded that his Honour could not have had regard to the standard non-parole period as a sentencing guide post. The Court found that the offence was below the mid-range of seriousness. It took into account in that regard that this was an isolated occurrence whereas it is common for offences of this nature to be part of a course of systemic abuse over a period of time. That is a consideration in common with the present case. Simpson J (as her Honour then was) said at [20]: "However, it is correct that the experience of the courts shows, as his Honour mentioned, that repetitive abuse is frequently associated with s66A offences. While a pattern of behaviour is not determinative of the evaluation [of whether an offence is in the mid-range of seriousness or at some other point on the spectrum], that a particular offence is an isolated instance is not irrelevant to that evaluation."
The Court also took into account in R v AJP that the offender had not threatened the complainant to keep her silence and in fact the offence had been discovered within about a week, whereas the appellant now before the Court did make such threats and his conduct remained undiscovered for much longer, whilst he continued to live in the same house as the complainant and mother for twelve months without further offence.
The offender in R v AJP was significantly younger than the appellant but even the appellant was only 36 at the date of sentence and this is his first time in prison. Undoubtedly there are points of difference between the circumstances of R v AJP and those now before the Court which would warrant some uplift of penalty against the appellant. But the substantial difference between an undiscounted sentence for R v AJP of 6 years 8 months with a non-parole period of 3 years 4 months and the appellant's sentence of 16 years with a non-parole period of 12 cannot be reconciled. That is so even allowing for the increase in the maximum penalty from 25 years at the date of AJP's offence to life in the present case. Of the two principal legislative "guideposts", as they have been termed, the statutory maximum has increased but the standard non-parole period has not. In a case such as the appellant's which is not in the upper reaches of the spectrum of offending against this section, the increase in maximum penalty would call for a marginal increase in severity of sentence, not an order of magnitude shift.
RR v R: The offender was found guilty by a jury of one count under s 66A that he had oral intercourse with a 5-year-old girl in March 2008. The maximum penalty was 25 years. This Court by majority declined to interfere with a sentence of 12 years including a non-parole period of 9 years. The complainant was the daughter of the offender's neighbour and had been playing with the offender's 7-year-old son. The offender was 46 year old at the time of the offence. He had forced the complainant and shouted at her to open her mouth as he thrust his penis back and forth. The complainant was immediately greatly distressed, ran across the street to her mother and reported what had occurred. The offender had a relatively minor criminal history with no prior sexual assault matters. His intellectual functioning was borderline impaired. Prospects of rehabilitation had been found by the sentencing judge to be reasonable.
Bathurst CJ did not disagree with the sentencing judge's observation that "the younger the child the more serious the offence" (at [101]). Johnson J (with whom James J agreed) endorsed the significance of the child's very young age to the objective gravity of the offence (at [147]): "It will be apparent immediately that a most significant feature of the present case is that it involved a five-year old victim, an age well removed from the age limit of 10 years which demarcates a s.66A offence. None of the cases referred to before her Honour, or before this Court, involved a five-year old victim. Her Honour referred expressly to the child in this case being 'extremely young, only five years old and the range for such an offence under s.66A is up to ten years'."
The Chief Justice was in dissent with respect to the outcome of the appeal, concluding that the sentence was manifestly excessive and should be reduced to 8 years with a non-parole period of 6. His Honour's observation on a point which differentiates RR v R from the present appeal is in my view significant (at [114]): "Although, as I indicated, the maximum term of imprisonment and the standard non-parole period for a contravention of s 66A indicates the gravity of the offence, the sentence seems to be disproportionate to an appropriate sentence for an isolated offence, but rather one more appropriate for significantly more serious or consistent criminality."
Jones v R [2012] NSWCCA 262: The offender was found guilty at the conclusion of his trial on two counts of having sexual intercourse with a boy 6 years of age, contrary to s 66A. These crimes were committed in October 2008 when the maximum penalty was 25 years. The offender was about 20 years old and the complainant was in his charge to visit some shops in a car. He took the complainant to a secluded location, pulled his pants down and licked and sucked his penis (count 1) then sat the complainant on his lap and anally penetrated him (count 2). The event was isolated. It occurred in Sydney. The complainant had been visiting there and he returned to the Moree district soon afterwards. About three months later he reported to his mother and grandmother what had occurred.
At first instance on count 1 a fixed term of 5 years was imposed and on count 2 a term of 15 years including a non-parole period of 11. In this Court those sentences were reduced, for count 1 down to 5 years with a non-parole period of 3 and for count 2, 12 years with a non-parole period of 8. McClellan CJ at CL said, with the concurrence of RA Hulme J and Schmidt J: [96] Furthermore, the offences were of short duration and occurred in immediate succession effectively as part of one continuous act. The offences were opportunistic. There was no suggestion that the complainant was groomed by the applicant or that there was anything other than limited forethought by him. The offences were committed without accompanying threats or intimidating behaviour.
Most of those features are equally applicable to the present case. Although the appellant's actions involved some struggle with the complainant it may fairly be said in mitigation of the seriousness of his crimes that a 9-year-old girl was able to stop him in his attempt to have oral and then vaginal intercourse. Evidently he did not fully utilise his superior physical strength and it may be inferred that he desisted in the face of resistance. The offender in Jones v R was 20 years old and the re-sentence by this Court in part reflects that subjective feature. However where the circumstances of offending between the two cases are otherwise closely similar, the sentence imposed by her Honour on the appellant cannot be reconciled to the decision in Jones. The significance of the increase in maximum penalty over time is the same for comparison of Jones with the present case as for comparison of AJP (see [265] above).
GN v R [2012] NSWCCA 96 was a case of a 40 year old offender who had penile vaginal intercourse with his 9 year old stepdaughter on one occasion in December 2009. He was charged under s 66A(2). The sentence passed in this Court, allowing an appeal, was 9 years with a non-parole period of 6. But for the offender's plea of guilty this would have been 12 years with 8 years non-parole. The offender's subjective circumstances included two features warranting mitigation of penalty which do not apply to the appellant. Namely, he had been persistently sexually abused by his own stepfather between the ages of 6 and 18 and he was mildly intellectually handicapped, to a degree which affected his moral culpability. It appears from the judgment of Basten JA at [10] and [11] that these factors were regarded as largely offset by the risk he posed of repeat offending, applying Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14.
MLP v R [2014] NSWCCA 183: The defendant was convicted of one count under 66A, committed in the second half of 2003 and was sentenced after trial. The maximum was 25 years. This Court entertained the appeal to correct error which flowed from the High Court's decision in Muldrock. In the event the Court did not disturb a sentence previously imposed of 16 years including a non-parole period of 11 years. The offender was 37 years old at the time of the offence. It was committed against his daughter who was 9 years old. At the time he and his wife were separated. The offender had taken the girl together with two of his other young children on a camping trip and had penile vaginal intercourse with her, involving full penetration, in the presence of the other children.
The offending was isolated, not representative of a pattern of behaviour, and of short duration - about 10 seconds. That was long enough for the complainant's hymen to be torn. The offender continued to deny his actions and therefore could not be said to have demonstrated contrition or remorse. In upholding the sentence this Court treated as significant the fact that the offender was the natural father of the complainant and that the offence had taken place in the presence of other young children, features not exhibited in the present case. These circumstances were referred to at [49]-[51] as a basis for distinguishing other cases in which lesser sentences had been imposed.
The Court in MLP v R acknowledged at [52] that the sentence was "stern" but was not persuaded that any lesser sentence was warranted. Having regard to the relationship of the offender in MLP v R to the complainant as natural parent, the fact that the offence involved vaginal penetration and tearing of the hymen and the presence of two other small children at the time of the offence I consider that the offending there dealt with was significantly more serious than in the present case. The "stern" sentence of 16 years with a non-parole period of 11 which was thought by this Court to be acceptable should not be regarded as within the range for the offending now under consideration. Still less can her Honour's higher sentence of 16 years with a non-parole period of 12 be considered warranted in law.
KB v R [2015] NSWCCA 220: In this case the offender entered a late plea of guilty to a charge under s 66A(1) that he had penile vaginal intercourse with a girl 8 years old in April 2009. He was 52 at the time, an employee of the girl's father on their family farming property. The maximum penalty was 25 years. In this Court he was resentenced to 11 years imprisonment with a non-parole period of 7 years 8 months. A discount of 15% was allowed for his late plea. Undiscounted the sentence would have been 13 years with a non-parole period of 9 years.
KB's offence contrary to s 66A(1) was count 7. He was also convicted of 3 counts of indecent assault against the same child, committed on various dates between January and April 2009 contrary to s 61M(2). These offences were instances of touching the child on her vagina, buttocks and chest at times when she accompanied the offender as he moved around the property and when her father could not see what was occurring. The offender from time to time warned the complainant not to speak of what had occurred. He had been dealt with in the Local Court for four further s 61M(2) offences committed later in 2009 against the complainant's older sister, aged 13 years.
In my reasons for decision in KB v R, with which Simpson JA and Button J agreed, account was taken of this Court's decisions in RJA v R [2014] NWCCA 89 and Ingham v R [2014] NSWCCA 123. In each of those cases it had been necessary to re-determine sentences for offences contrary to s 66A, at times when the maximum penalty was 25 years, following the High Court's decision in Muldrock. In RJA v R and Ingham v R the highest penalties fixed for offences against s 66A, even when they were part of a course of sexual offending against children aged 8 to 9 years, were 13 years with a non-parole period of 9 years. The offender in RJA v R was the child's natural father.
I find in the collective judgment of the members of this Court who have been parties to the decisions cited here, considerable support for my view that a sentence of 12 years with a non-parole period of 9 was an appropriate penalty in the present case. I invoke those earlier decisions as showing that under her Honour's sentence the appellant has been dealt with significantly more harshly than a number of other offenders in relevantly comparable circumstances. In all comparisons with sentences passed for offences committed when the maximum penalty was 25 years I have taken into account that life was the maximum penalty applicable to the appellant's offences. As indicated at [265] and [271], even allowing for the increase in the maximum, the sentence imposed on the appellant was anomalous and greater than what was warranted.
For the lesser offences in counts 2 and 3 I consider a sentence in each case of 4 years with a non-parole period of 3 would be appropriate. These offences involved no actual physical sexual contact. They were attempts which were fought off. They would undoubtedly have been extremely disturbing and distressing to the 9-year-old complainant but her robust response ensured that what actually took place did not reach a high degree of seriousness. The appellant did not follow through with the superior force which he would undoubtedly have been able to bring to bear. There was no subsequent repetition of these attempts.
Of course any offence against this section will only ever be an attempt, by definition - yet a high maximum penalty is prescribed. Notwithstanding this, the present instances were not high on the scale of relative seriousness of such attempts. Much worse infringements of the section can readily be envisaged.
The appellant must be sentenced for each of these sentences on its own facts, taking into account that together they constituted the second and third parts of a sequence which began with the more serious anal penetration in count 1. Weighing all of these features I consider the fixed terms of 8 years for these offences to have been manifestly excessive. Having regard to the temporal and physical relationship between all 3 offences the total criminality involved would require that the sentences I have proposed should be served concurrently.
Accordingly, whilst I would join in orders (1) and (2) as proposed by Price J that the appeal against conviction be dismissed and that leave to appeal against sentence be granted, the subsequent orders I propose are: (3) The sentences imposed by Wells DCJ on 18 August 2015 are set aside (4) In lieu thereof the appellant is sentenced as follows: 1. On count 1 to imprisonment for a non-parole period of 9 years commencing 15 June 2015 and to expire on 14 June 2024 and a balance of term of 3 years to commence 15 June 2024 and to expire 14 June 2027. 2. On count 2 to imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019. 3. On count 3 to imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019.
The appellant will be eligible to be released to parole on 14 June 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2017

At a glance

Court

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Before

Source

Judgment (33 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (52)